Medical Students: Non-EU Nationals

Lord Walton of Detchant: asked Her Majesty's Government:
	Whether they will review the new regulation under which non-European Union nationals who have trained in and graduated from United Kingdom medical schools will be required, after a two-year postgraduate foundation appointment, to have a work permit before embarking on further postgraduate training in the United Kingdom.

Lord Warner: My Lords, we appreciate the contribution that non-EEA doctors have made to the NHS. However, we must ensure that the increasing resident medical workforce arising from the Government's expansion of UK medical schools can continue and complete postgraduate training. That is why it is necessary to apply resident labour market tests to international medical graduates. We have retained a provision to enable non-EEA graduates of UK medical schools to gain full registration with the General Medical Council and, in addition, to complete a foundation programme without the need for a work permit.

Lord Walton of Detchant: My Lords, I thank the Minister for that reply. Does he accept that UK medical schools have had a proud record for many years of accepting a small number of very bright students from countries outside the EEC—many from the Commonwealth—who have subsequently gone on to undertake a full programme of postgraduate training in the UK before returning to their home country to lead their profession? Is it not anomalous that those young doctors, who have spent thousands of pounds in international fees on their medical education here, will not now be able to go on to postgraduate education after completing their foundation course unless they get a work permit, which will not be granted if they apply for posts for which a UK or EEC national is also applying, particularly at a time when there is growing evidence that the number of specialist training posts in postgraduate medicine is far lower than the number of doctors who will be competing for them?

Lord Warner: My Lords, doctors from overseas can undertake undergraduate training in medical schools and continue to do so. However, at the point at which they move into postgraduate training, precedence is given to qualified UK and EEA residents. If there are posts remaining, there is scope for international medical graduates to compete for them.

Lord McColl of Dulwich: My Lords, how many of the current non-UK, non-EEA medical students will be affected by the changes to the Immigration Rules?

Lord Warner: My Lords, I cannot answer that with specific numbers. I have said that the work permit rules mean that postgraduate training is no longer a permit-free experience as it has been hitherto. A resident labour market test is applied, which means that UK and EEA medical graduates take precedence in filling postgraduate places. A residual number will in all likelihood remain for international medical graduates, but I cannot give a figure of the kind that the noble Lord wants.

Lord Tunnicliffe: My Lords, does my noble friend agree that increased investment in the National Health Service since 1997 has produced a situation in which the UK is increasingly self-sufficient in the provision of staff for the health service?

Lord Warner: My Lords, my noble friend is absolutely right: we have increased the number of medical school places in the UK by about 60 per cent. That means that we are moving to the position that the WHO would like us to move to, where we are producing the number of doctors that we need in this country on a sustainable basis and not drawing in from overseas doctors who may be needed in their own country.

Baroness Neuberger: My Lords, the Minister knows of my particular concern with mental health services. The Royal College of Psychiatrists, along with the other royal colleges and the BMA, has been particularly vexed by this change. It says that psychiatry, which has always had a high proportion of international medical graduates and has become dependent on them, is likely to lose a substantial number of trainees under the new rules and probably more than other specialties. What will the Government do to ensure that that does not happen?

Lord Warner: My Lords, there are two separate issues: entry to postgraduate training and staff posts that are not training posts in NHS hospitals. It will continue to be the case that doctors who are not seeking postgraduate training posts can apply on the same basis. They now require work permits for available posts should the need arise.

Baroness Williams of Crosby: My Lords, bearing in mind the Question asked by the noble Lord, Lord Walton of Detchant, can the Minister explain why this happened so suddenly? Did not those who had studied in British medical schools reasonably expect that they would be allowed to enter graduate training without the need to meet an additional regulatory requirement? Why did the Government decide to change the regulations at such short notice, with such embarrassing consequences for many genuine and hard-working medical graduates?

Lord Warner: My Lords, the Home Office made it clear in July 2005 that there needed to be a tightening-up of the rules. It consulted throughout last year on a change in the Immigration Rules to a points-based system. We consulted a number of people on ensuring that postgraduate training was integrated into that system for the placements that will take place this August. We have also made transitional arrangements so that those with expectations of postgraduate places can continue into those placements.

Lord King of Bridgwater: My Lords, does the Minister recognise that many previous postgraduates who may have spent some time here and then returned to their own country have been an extremely valuable investment for our country because of the relations that have been established and often because of the heights to which they have risen in their own country thereafter? At a time when it is claimed that America is attracting all the best postgraduates, does the Minister recognise the importance and enormous potential value of bringing bright people to this country, where they may develop an affection and understanding of this country?

Lord Warner: My Lords, I recognise that, and I have paid tribute to the work that these doctors have contributed to the NHS. As I said, it is possible for people from overseas to enter UK medical schools, and it continues to be possible for them to apply for posts in postgraduate training. We will also continue the arrangements for what have been described as sponsorship schemes for doctors who come over for specialist training and before they return to their own country. There is also the Highly Skilled Migrant Programme. There are a number of areas where the contacts can continue, but I have to remind the noble Lord that the purpose is to ensure that we have postgraduate training places for the expanding output from UK medical schools.

People Trafficking: Children

Baroness Anelay of St Johns: asked Her Majesty's Government:
	What is their response to the conclusion of ECPAT UK (End Child Prostitution, Pornography and Trafficking) that child trafficking has spread from London to Liverpool, Manchester and Newcastle.

Baroness Scotland of Asthal: My Lords, child trafficking has never been confined to London. We have had reports of child trafficking from children's charities, social services, and police and immigration officers in all four cities. We have recently commissioned an intelligence-gathering project to scope the nature and extent of the problem across the United Kingdom, and this work will enable us to better co-ordinate and target our resources to tackle the problem.

Baroness Anelay of St Johns: My Lords, I thank the Minister for her helpful reply. We all want to wipe out the scourge of child trafficking, which should not exist in 21st-century Britain. Will she give an assurance that, when the Government publish their action plan in the autumn, it will include the four vital elements of safe accommodation for child victims of trafficking; medical and legal help for them; the appointment of an independent child trafficking rapporteur; and the Government signing up to the Convention on Action against Trafficking in Human Beings?

Baroness Scotland of Asthal: My Lords, I endorse what the noble Baroness said about our abhorrence of child trafficking. I assure her that the four issues that she raised will be given active consideration when we come to determine how best to respond in the action plan.

Baroness Walmsley: My Lords, which countries have the Government approached to discuss safe returns programmes? What has been agreed with those countries, and which other countries do the Government intend to approach?

Baroness Scotland of Asthal: My Lords, I cannot answer that question specifically in relation to child trafficking. The noble Baroness will know that we have been talking to a number of our international partners over a period of time about how we can safeguard children and make sure that internally—intra-state—there are proper arrangements for these matters. I can certainly make an inquiry and, if we have specific conversations with specific countries, I will write to the noble Baroness.

Baroness Goudie: My Lords, in raising a wider issue, I declare an interest, as I am involved with Vital Voices, among other organisations. Twenty-six European nations have signed up to the Council of Europe convention on trafficking, so why have the British Government not signed up to it? The convention covers not only young girls, but boys, women and people who are signed up and sold into slavery.

Baroness Scotland of Asthal: My Lords, I reassure my noble friend that my Answer to the noble Baroness, Lady Anelay, remains true: we absolutely abhor the trafficking of young people and, indeed, women. We are actively looking at how we should respond to it, and the nature of the convention is being looked at.

Lord Hylton: My Lords, will the Government ensure that there is maximum vigilance by all staff at regional and Scottish air and sea ports in order to identify trafficked children? Secondly, will there be a range of options available for those children, including specialised fostering with considerable support for the foster parents?

Baroness Scotland of Asthal: My Lords, I reassure the noble Lord, Lord Hylton, that we are actively looking at the issue. He will know that we set up a ministerial group on trafficking. We are working with social workers and others and have sited them at the five ports in order to deal with these issues. We have made £140 million pounds available to local authorities specifically to deal with these children, and we need to look at how that can be better targeted to respond to the needs of the young people and children whom we are trying to safeguard.

Baroness Morris of Bolton: My Lords, what discussions have the Government had with the British Airports Authority following the CPS report that people smugglers were using British airports to hold slave auctions? It was reported that one such auction was held outside a coffee shop in the arrivals hall at Gatwick airport. What is being done to stop such auctions as a matter of urgency?

Baroness Scotland of Asthal: My Lords, specially trained teams of immigration officers have been established in the 22 ports to deal with all cases of unaccompanied children and trafficking. The Immigration Service is involved in the work of the newly established local safeguarding children boards, for which we have produced guidance. As I said, teams of social workers have been specifically established at the five ports, and we have set up asylum screening units, principally to help to identify the particular needs of unaccompanied asylum-seeking children and to develop plans. We have become aware that this is an issue, and all the agencies are working together to be able to address it better.

Lord Lester of Herne Hill: My Lords, further to the question asked by the noble Baroness, Lady Goudie, will the Minister explain to the House the problems with ratifying the trafficking convention when so many other states have done so?

Baroness Scotland of Asthal: My Lords, the matter is under active consideration, but there are details with which we are not currently satisfied. We are looking at those issues, but I am reluctant to say more at this stage, not least because the matter is under active consideration and no conclusion has been arrived at yet.

Lord Davies of Coity: My Lords, although I very much appreciate the Minister's reply to the extent that she says that the Government are looking at the best way to deal with this cruel practice, would it not send out the right message if we signed the convention as a statement of our real intent to deal with the matter?

Baroness Scotland of Asthal: My Lords, I understand the totemic significance of that, but this country has always been good at looking at the practical as opposed to the theoretical. I assure my noble friend that every practical step is being taken to respond robustly, so that we have good provision on the ground. If we compare the active work that has been done in this country with the work that has been done in others, we will see the work that we are doing here in a very favourable light.

Lord Swinfen: My Lords, what checks are undertaken to ensure that accompanied children are accompanied by people who are properly authorised to have charge of them?

Baroness Scotland of Asthal: My Lords, we have changed the rules so that, in the visa provisions, some clear conditions have been put down so that we have details about who the accompanying adult is, what their relationship to the child is and where they have come from. That is critical, because it enables us better to check those details when those people come through our ports. A difficulty in the past has been that, because those data were not put on the information forms, they could not be accurately assessed in a way that proved to be necessary. The new changes that we have made will enable us to do that far more effectively than we have ever been able to do before.

Lord Rotherwick: My Lords—

Lord Rooker: My Lords, I am sorry, but we are well into the 16th minute.

Questions for Written Answer

Lord Skelmersdale: asked Her Majesty's Government:
	Whether it is now common practice to send Answers to Written Questions to Members in photocopied format.

Baroness Amos: No, my Lords. It is established practice for Peers to receive original signed responses to their Written Questions.

Lord Skelmersdale: My Lords, I am grateful to the noble Baroness the Lord President of the Council for that Answer. It may be established practice, but I am afraid to say that it does not always happen. Is the Minister aware that, last Monday, I received two Written Answers, both of which were photocopied and had facsimile ministerial signatures? I understand that mistakes happen from time to time—I have been known to make them myself—but when two departments get into the same muddle, I express surprise. I have had two fulsome apologies from the two Ministers involved, but, none the less, is that not a further example of the Government's continued sloppiness?

Baroness Amos: My Lords, a number of departments have used electronic signatures to enable them to get responses out to Peers in a timely fashion. I have checked this, and I understand that they are not photocopies but that electronic signatures have been used. Departments have now been made aware that that is not good practice, and I have been advised that the practice has ceased in all departments.

Lord Foulkes of Cumnock: My Lords, if the noble Lord, Lord Skelmersdale, had approached the Minister in the Lobby and had had a quiet word with her, would she not have given him precisely the same Answer? What is the estimated cost to the taxpayer of answering the noble Lord's Question?

Baroness Amos: My Lords, of course I would have answered the Question asked by the noble Lord, Lord Skelmersdale, but if the noble Lord has a concern that he wants me to answer across the Dispatch Box, it is my responsibility to do so.
	On the cost of answering Oral Questions, I do not have that figure, but I am sure that I can obtain an average and I shall write to my noble friend. I can tell the House that the average cost of answering a Written Question is £134.

Lord Lester of Herne Hill: My Lords, I very much hope that what I am about to say will not cost too much to answer. Is the Minister aware that the problem raised by the noble Lord, Lord Skelmersdale, which is one of courtesy and form, also relates to the Answers given at the same time to my Questions for Written Answer, where the problem was one of substance; that is, that the Answers were opaque? Is she also aware that the Minister concerned in the Department for Constitutional Affairs immediately asked to see me, discussed the problem with me, acknowledged that it was not good practice and has done something about it?

Baroness Amos: My Lords, I am delighted to hear that. It is bad practice if departments do not reply as fully as they are able to. If there are issues that they do not understand in a Question, it would be good practice to get back to the Peer who asked it to gain some clarification.

Lord Jopling: My Lords, does the noble Baroness accept that the delay in answering Written Questions is a disgrace and a contempt of the House? Does she recall that she has told us repeatedly that Written Questions should be answered within two weeks? Did she notice this morning that there were 85 Questions unanswered after two weeks; there are 37 unanswered after three weeks, of which 22 are from the Home Office; and after nine weeks, three Questions still remain unanswered from the Home Office, that sad shrine of shambles and slumber? Will she, as Leader of the House, do something to stop this and stop wringing her hands and wailing that she is only doing her best?

Baroness Amos: My Lords, I do not think I have ever been guilty of wailing or wringing my hands. That is not my natural mode of behaviour. The noble Lord, Lord Jopling, has raised this issue with me on a number of occasions. It is incumbent on departments to answer Questions in a timely fashion. I raise this issue regularly with my colleagues not only in this House but in another place. I have discussed it very recently with my right honourable friend the Home Secretary. Noble Lords will know that new systems are being put in place in that department. My right honourable friend has assured me that things will improve, but it will take time. This issue has also been raised in another place. My right honourable friend the Leader of the House of Commons is also pursuing these issues vigorously.

Lord Maxton: My Lords, given that Ministers can sign electronically, would it not be faster and cheaper if Members were prepared to accept Written Answers electronically by e-mail instead of in any written form whatever?

Baroness Amos: My Lords, a number of Peers have indicated that they would like to receive Answers to their Written Questions in electronic form. That already happens, but those noble Lords who have not so indicated will receive a written response signed by a Minister.

Earl Ferrers: My Lords, will the noble Baroness be kind enough to advise her noble friend Lord Foulkes that my noble friend Lord Skelmersdale is quite right to table a Question drawing the attention of the House to this issue and to ask questions of the Government when they have not fulfilled their responsibilities? Will she also give an undertaking not to find out the cost of the Question, as that will merely add to the noble Lord's irritation?

Baroness Amos: My Lords, it is open to any Member of the House to ask me a Question. The noble Lord, Lord Skelmersdale, did that and I answered the Question. An equal courtesy applies to my noble friend Lord Foulkes.

Lord McNally: My Lords, given the passions raised by this Question, will the Leader of the House reassure Members that Whitehall still follows the bikini principle in answering Parliamentary Questions? She clearly does not know the principle, but it is to cover as little as possible while concealing the interesting bits.

Baroness Amos: My Lords, the noble Lord knows a great deal more about a bikini than I do.

Water Supply: Ofwat

Lord Dubs: asked Her Majesty's Government:
	Whether they have any proposals to change the powers of Ofwat in view of the recent shortages in water supply.

Lord Rooker: My Lords, the powers of Ofwat have been adjusted by legislation from time to time, most recently in the Water Act 2003, so that the regulator is best equipped to regulate the industry in the interests of customers. There are no proposals for further changes at present.

Lord Dubs: My Lords, I am grateful to my noble friend. Will he confirm that Thames Water, probably the worst culprit among the water companies, loses 30 per cent of its water in leaks, which is enough to supply almost 3 million households? Will he further confirm that, while we already have a hosepipe ban and a drought order is on the way, Thames Water's profits are 30 per cent up and the company has been given the go-ahead to put up its bills by 24 per cent above inflation? Will he accept that customers are fed up with being conned by a monopoly supplier when the only protection that they have is Ofwat, which is not fit for purpose in doing that job?

Lord Rooker: My Lords, my noble friend is right that customers of Thames have every right to be angry, but the fact is that Ofwat is the regulator and it has the enforcement powers. Both Houses of Parliament decided that Ofwat was best equipped to do this. It is not for us to tell Ofwat how to do the job. It has the necessary enforcement powers to bring about change.

Baroness Miller of Chilthorne Domer: My Lords, the Minister implies that the Government have no powers, but I recall that under the Water Act 2003 they gave themselves the powers to require water companies to bring in water shortage plans. Does the Minister agree that it is time that the Government enforced that requirement? Have any steps been taken along those lines? It is time that the Government stopped passing the buck back to Ofwat and the water companies.

Lord Rooker: My Lords, frankly that is an unfair question. First, the water companies have a duty to have 25-year plans for their area, taking into account potential development. Parliament has put that on a statutory basis, and there is no get-out from it. On the noble Baroness's second question, I go back to what I said. Ofwat has been put there by Parliament to regulate and do a job. It is not for us to second-guess Ofwat. It has the powers to impose financial penalties and to secure compliance by means of enforcement orders.

Lord Forsyth of Drumlean: My Lords, unusually, I find myself somewhat in sympathy with the noble Lord, Lord Dubs, in his criticisms. Is not part of the answer not to give the regulator more powers, but for him to exercise his powers and to move towards a system of metering? It is ridiculous that the water companies are able to get their income regardless of how much is consumed by the consumer. All the evidence is that water metering would reduce consumption by some 10 per cent. Surely the Government have a responsibility there.

Lord Rooker: My Lords, we have no plans to enforce water metering. Some 28 per cent of households are on a meter. Meters can be fitted free of charge. Anyone can ask their water company to put a meter in. They can see how it goes for a year and at the end of that year if they want to go back to the previous system they are entitled to do that. All new properties are built with meters. There will be leaks; there is no question about that. The length of the water network in England and Wales alone, leaving aside the 24 million connections, is the same as the distance from the Earth to the moon.

Lord Berkeley: My Lords, can my noble friend explain in a little more detail exactly what enforcement powers Ofwat has? How much could Thames Water be fined in extremis? Is it possible for Thames Water's whole business to be removed from the company and given, allocated or sold to another company if it fails to perform?

Lord Rooker: My Lords, I understand that since the rules changed in April 2005, Ofwat has been able to impose a financial penalty of up to 10 per cent of turnover, which is substantial. I am not sure whether that could be repeated over a given time span, which would make it very substantial indeed.

Lord Tebbit: My Lords, does the Minister agree that many of the problems of Thames Water arise from the fact that most of its underground pipework was installed 85 years before the company was created? In that respect, it is unfair to criticise the company as though it was solely responsible for the problems. Does he agree that another problem that affects us all is that Thames Water, like any of the other water companies, is unable to cut off supplies from people who wilfully refuse to pay their bills?

Lord Rooker: My Lords, the noble Lord's latter point is a fair question, but I am not sure that it is relevant to the issues here. The noble Lord is quite right that as a society we have dined out on the Victorians' infrastructure for too long—not just water but everything else as well—because of a flat refusal to invest. It has to be said—not tongue in cheek—that, since my party vigorously opposed water privatisation, £55 billion has been invested by the water industry, which would not have happened under the previous rules of public ownership.

Lord Blackwell: My Lords, has the Minister seen the Thames Water advertisement stating that, although the reservoirs were replenished by the rains in May, it is applying for drought orders just in case we have a long, dry summer? If so, does that reflect the Government's advice to the water companies?

Lord Rooker: My Lords, the application for the drought order is precautionary; it will give Thames Water an opportunity to put further restrictions on use, possibly industrial use. If things get really bad, which they are not expected to, it can apply for a special drought order. In some ways this is an issue for the south-east—"uniquely" is probably too strong a word—as the reservoirs in the north-east and the north-west are fine. The major issue is in the south-east, where most of the water comes from bore holes.

Regulation of Investigatory Powers (Communications Data) (Additional Functions and Amendment) Order 2006

Regulation of Investigatory Powers (Directed Surveillance and Covert Human Intelligence Sources) (Amendment) Order 2006

Baroness Scotland of Asthal: My Lords, I beg to move the two Motions standing in my name on the Order Paper.

Moved, That the draft orders laid before the House on 5 June be approved. [29th Report from the Joint Committee and 37th Report from the Merits Committee] [Considered in Grand Committee on 19 June].—(Baroness Scotland of Asthal.)
	On Question, Motion agreed to.

Northern Ireland Act 2000 (Modification) (No. 2) Order 2006

Recovery of Health Services Charges (Northern Ireland) Order 2006

Lord Rooker: My Lords, I beg to move the two Motions standing in my name on the Order Paper.

Moved, That the draft orders laid before the House on 24 May be approved. [Considered in Grand Committee on 19 June].—(Lord Rooker.)
	On Question, Motion agreed to.

Piped Music and Showing of Television Programmes Bill [HL]

Lord Beaumont of Whitley: My Lords, I beg to move that the Bill be committed to a Committee of the Whole House.

Moved accordingly, and, on Question, Motion agreed to.

Civil Aviation Bill

Lord Davies of Oldham: My Lords, I beg to move that the Commons amendment and reason be now considered.

Moved accordingly, and, on Question, Motion agreed to.
	LORDS AMENDMENTS
	[The page and line references are to HL Bill 21 as first printed for the Lords.]
	1 Clause 1, page 1, line 7, leave out "may" and insert "shall"
	2 Page 1, line 8, leave out from "in" to "by" and insert "proportion to the noise made by aircraft and"
	4 Page 2, line 31, at end insert—
	"( ) Charges, in relation to noise, shall be proportional to the noise emitted."
	The Commons disagree to these amendments for the following reason—
	Because it is not appropriate to require aerodrome authorities to fix their charges in the manner proposed

Lord Davies of Oldham: My Lords, I beg to move that the House do not insist on its Amendments Nos. 1, 2 and 4, to which the Commons have disagreed for their reasons 1A, 2A and 4A.
	As I am sure the House will recall, Amendment No. 1 was moved in the belief, which I readily accept is shared by others in this House and indeed in another place, that aerodrome operators would not voluntarily make use of the provisions in the Bill to fix their charges by reference to noise or emissions of aircraft. During proceedings both in this House and in another place the Government have gone to some lengths to explain why they view the situation in a very different light. Although the Government have of course considered most carefully the arguments that have been put forward, I regret that I cannot see a case for imposing a duty on more than140 licensed aerodromes to introduce noise or emission-related charges for all aircraft. Noble Lords will be aware that aerodromes can range in size from London Heathrow to a tiny airport in the Orkneys and Shetland Isles which has very few aircraft movements in any one day. Yet the effect of this legislation would impact on all aerodromes irrespective of their size.
	As noble Lords will recall from earlier debates, the power to charge by reference to noise has been available to airports for almost 25 years and many of our larger airports have regard to noise when setting their charges. But one of the key elements of our policy on aircraft noise is that, wherever possible, local controls are the best way to manage the local environmental impact of aviation. Imposing a blanket requirement that an airport's charges must be set by reference to noise and emissions would undermine airports' ability to reflect their own local circumstances.
	I want to assure the House, once again, that the voluntary approach does not mean that the Government are powerless if an airport were to disregard its responsibilities. The existing Section 38 of the Civil Aviation Act 1982—which was passed, of course, by a previous Administration—already gives the Secretary of State the power to direct specified aerodromes to make use of the charging power as regards noise. This power is to be found—it is now, of course, extended to cover charging by reference to emissions as well—in subsection (4) of new Section 38. No Government, of whatever political complexion, have found it necessary to use this power to date but I can assure the House that if it appeared to Ministers that it would be appropriate to make use of this power to deal with the noise and emissions-related charging practices, or lack of them, of any airport, that is a step that we would take, just as we have said that if there is evidence that a major noise problem at a non-designated airport is not being dealt with adequately through local controls, we will consider designating it for the purposes of Section 78 of the 1982 Act. The House will recognise that, at present, the designated airports are the three London ones of Heathrow, Gatwick and Stansted, but we have the power to bring other airports within the same framework of designation if it should prove to be necessary.

Lord Mawhinney: My Lords, I am grateful to the Minister for giving way. Both of us know from our time in the Department for Transport that, for example, Heathrow has ignored the complaints about noise of those who live in the penumbra of the airport, especially noise relating to the early landing of flights. Given the knowledge that he and I have just shared with the House, what makes him think that local control with respect to noise is actually working?

Lord Davies of Oldham: My Lords, Heathrow needs to take its local environment very seriously, particularly in an age when the issue of emissions as well as noise comes very much to the fore. It will be recognised, for instance, that any debate which obtains with regard to expansion at Heathrow and which brings in local pressures about the use of the airport is very much part of the public debate on whether there should be an extension of facilities. This issue, of course, obtains to our other airports, of which Stansted has the most immediate expansion plans.
	A balance must be struck between emissions, noise and other unattractive features of airports and the need for some expansion. We cannot deny the obvious fact that our fellow citizens greatly value air flights. In fact, it may even be that many noble Lords from time to time avail themselves of aircraft—and I am afraid that aircraft only fly from airports. I will give way again to the noble Lord, of course.

Lord Mawhinney: My Lords, again I am grateful to the Minister and I apologise if I am testing his patience. I am one of those who share his view that expansion needs to take place, but perhaps I may take him back to my question: given the experience at Heathrow, what makes him think that local control actually works?

Lord Davies of Oldham: My Lords, of course there are bound to be pressures with the expansion of airports. It is bound to create circumstances where additional flights occur, and it cannot be the case that in the locality this is greatly welcomed. But it is expected that airports act responsibly; that they work within the environment of their local consultative committees on which local people are represented; and that proceeds from charges can and do go to improve facilities in their locality.
	I want to emphasise the obvious point. Of course there will always be challenges to any form of airport expansion. A balance must be struck. I want to assure the House that we have in place existing powers to guarantee that airports face up to their responsibilities. If they should renege on these responsibilities, this Administration have been in power for almost a decade, and the noble Lord will recognise, as he mentioned in his question, that we and Ministers from the previous Administration have faced up to these issues of airport expansion. A balance must be struck between the problems for the local environment and the need to provide greater scope for air travel. I am merely indicating that neither the previous Administration nor this one have felt the need to use the powers that we have under Section 78 because we find airports all too well aware of the fact that they will not see through their expansion plans unless they take an element of the locality with them.

Lord Clinton-Davis: My Lords, would my noble friend say something about the international response to noise? How are the Government going about this situation? It is no good taking action against Heathrow or any other BAA airports unless some sort of international initiative is forthcoming. That is very important.

Lord Davies of Oldham: My Lords, of course my noble friend is absolutely right. This Government's responsibility is to localities in which the airports are located. I must emphasise that we are dealing with Commons amendments at a fairly late stage of this Bill, and it is not for me to reopen or participate in a debate on airports policy at the present time. But to make the most obvious point, United Kingdom airports are not just in competition with each other; for Heathrow and the other London airports, the great challenges come from European airports. If we do not make adequate provision for flights from this country, the number of flights will not be reduced because aircraft will merely take off from Schiphol and other airports on the Continent without any enormous gain to our people.

Baroness Tonge: My Lords, the Minister would not expect to get away with his comments on airports reneging on their responsibilities without me making some comment. The airports have always reneged on their responsibilities in my experience, whether it be noise, nuisance created to the local community, or the number of flights, aircraft emissions, or the frozen effluent that used to drop and still does drop on my constituents in the Richmond Park area—when I was their Member of Parliament. They have never taken these issues seriously and have not kept promises given to the local residents that there would be no more expansion at Heathrow. It is about time that, instead of uttering the same old stuff about reneging on responsibilities and consulting with the local community, the Government actually took residents seriously and said that we cannot go on with this demand for increased air travel without considering local people and the environment.

Lord Davies of Oldham: My Lords, the noble Baroness will recognise that that is the Second Reading speech. If she were in the other place it would be defined as such, and at this stage in a Bill it would be ruled out of order. Today we are discussing a very late stage of the Bill; we are not at the Second Reading stage with regard to airports policy. Therefore, I ask the noble Baroness to allow me to concentrate on the specific issues before us today under the Commons amendments.
	Charges are not the only lever—or even in the case of aircraft noise, the most significant one—that we will expect aircraft operators to use to address the impact of their operations on local people. The provisions of Clauses 3 and 4 of this Bill can do far more to drive improvements in the noise climate around airports. They will enable the operators of designated airports to charge penalties for breaches of the noise control measures the Secretary of State specifies. That is the impact of Clause 3. Clause 4 will empower the operators of non-designated airports to set up noise control schemes and to charge penalties for breaches. Of course, the revenue raised from those penalties will then be put to the benefit to the wider community.
	I would argue that it simply would not be appropriate to impose a legal duty on all licensed aerodromes to impose noise-related charges. Such a move would be entirely disproportionate when many of these aerodromes are small in size and cause little or no significant disturbance. Indeed this would run contrary to the International Civil Aviation Organisation's guidance that noise-related charges should be levied only at airports experiencing noise problems. I would also remind the House of the Government's policy to do all they can to avoid unnecessary regulation.
	The essential aim of Clause 1 is to provide clear statutory powers for airports to fix their charges by reference to aircraft emissions as well as noise. In fact the British Airports Authority already has an emissions-related charge at Heathrow and Gatwick—using its conditions of use—but the Government believe that it is important that there are clear powers for all licensed aerodromes to do so, should their local circumstances make it necessary.
	As in the case of noise, there is not a case for imposing an obligation on all licensed aerodromes to impose an emissions-related charge. Given that the vast majority of aerodromes are not at risk of breaching air quality limits, it would be totally unjustified to impose such a widespread burden.

Lord Clinton-Davis: My Lords, as my noble friend knows, I held particular responsibility for aviation between 1974-79. During the whole of that time and subsequently, the Government and the Opposition did not raise a cheep about this. Does the Minister agree? The first time that this situation has emerged is with the present Opposition.

Lord Davies of Oldham: My Lords, my noble friend has greater powers of recollection than I and was more directly involved in these issues. The House will recognise that he is an authority on these matters and I am sure that what he says is broadly true. However, we made a promise in The Future of Air Transport White Paper to bring forward legislation enabling the Secretary of State to require an emissions-related element to be introduced, which is exactly what this Bill does.
	Amendments Nos. 2 and 4 would, as I am sure noble Lords will recall, affect the way in which noise and emission charges should be set. The Government of course agree that it is entirely reasonable to expect airport operators to set appropriate noise charges. Again, not to do so would be at odds with ICAO guidance that noise related charges should be non-discriminatory between users and should not be established at such levels as to be prohibitively high for the operation of certain aircraft.
	The Government are unconvinced that this is something that needs to be placed in the Bill. I can only repeat that airports have been making use of the power to set noise-related charges for nearly 25 years and there has been no suggestion that they have not done so in an appropriate or proportionate way. I recognise that there will be some disappointment among some noble Lords at the Government's position. I appreciate the particular interest that the noble Baroness, Lady Tonge, takes in these measures, given her former relationship to a constituency so close to London Heathrow.
	Let me make it absolutely clear that should there ever appear to be a problem with the charging scheme, the Secretary of State has the power to direct an airport operator as to the manner in which the charges are to be fixed. It is not a question of powers and legislation but of choice with regard to policy. We will continually debate policy with regard to airports; they are destined always to be a controversial issue. However, we are discussing today an amendment to legislation, and I do not believe that noble Lords should sustain their position on their amendments. I beg to move.
	Moved, That the House do not insist on its Amendments Nos. 1, 2 and 4 to which the Commons have disagreed for their reasons 1A, 2A and 4A.—(Lord Davies of Oldham.)

The Earl of Mar and Kellie: rose to move, as an amendment to Motion A, leave out "not".

The Earl of Mar and Kellie: My Lords, in moving Motion A1, I notice that I have already gathered some support. I apologise for the fact that this is a manuscript Motion, which others may not have seen already. I also pay tribute to my noble friend Lord Bradshaw, who, after vigorous performances in the early stages of the Bill, cannot be with us today. However, he is recovering well and we all look forward to his being back in his place. In the mean time, your Lordships will have to put up with me.
	We believe that airports, particularly large and medium-sized airports, must have a noise and air pollution regime in place at all times and a charging scheme that reflects the performance and efficiency of each individual aircraft. We believe that the Government's plan to allow airports to have such a scheme on a voluntary basis for now is not responsible in terms of the reduction of pollution. While we recognise that air travel is popular and that the demand for it is growing, there is no doubt that every effort needs to be made to reduce noise and atmospheric pollution at airports. I should declare an interest: yes, I flew here yesterday and, yes, I will fly back to Scotland tomorrow.
	Only by having landing charges that reflect aircraft efficiency will there be any real incentive for aircraft operators to improve their aircraft and hence reduce pollution in the vicinity of airports. The Government's proposal would make the use of inefficient aircraft more attractive and would lead to newer airports not being obliged to have a noise and air pollution charging regime. While that would enable the airport to develop its business more easily, it would increase the amount of pollution in the immediate locality of the airport and, of course, globally. This charging regime should be implemented at all but the smallest scheduled airports. We would exclude remote places such as Traigh Mhor beach in Barra, Tiree and Machrihanish.
	We have had no assurance from the Government that they have understood that noise is measured on a logarithmic scale, about which my noble friend Lord Bradshaw was eloquent during earlier stages of the Bill. Hence, we believe that charges should reflect the level of aircraft noise, because the gradations are very substantial. We do not accept the Commons reasons because they have not said why we are wrong. They have merely said that they disagree. I beg to move.
	Moved, as an amendment to Motion A, leave out "not".—(The Earl of Mar and Kellie.)

Lord Hanningfield: My Lords, we support this amendment. Every effort should be made to reduce and control noise. We feel that the Government still did not offer enough in recent debates; this amendment has been returned from the Commons so we will be supporting the Liberal Democrats in this case.

Lord Clinton-Davis: My Lords, I have already indicated my interest in this matter. I also ought to say that I am president of the British Air Line Pilots Association.
	There is no evidence whatever to support the claim that has just been made that aircraft owners have a vested interest in inefficient aircraft. We have had plenty of experience of that significant issue, and no evidence to support that view has been forthcoming from the Liberal Democrats. I challenge the noble Earl to give us some evidence that the British Airports Authority ignores complaints that are made. Every single complaint made by people around the airport is taken notice of and acted on. That is the purpose of the committees to which my noble friend referred.
	It is very strange that the Liberal Democrats and the Conservative Opposition seem wedded to the idea of compulsion. Since when? The Liberal Democrats did not utter one word about compulsion beforehand, and I cannot recall the Conservatives doing so either. As my noble friend has said, measures to reduce environmental impact, as far as aircraft noise is concerned, have been available to airports on a voluntary basis for nearly a quarter of a century. The airports deal with it. They are aware that there is a problem. That is hardly surprising, because the voices of the people living around or near the airport are often heard, and rightly so. The local authorities are concerned about this issue as well, as they should be. It is no answer, however, to attack the airport authority willy-nilly for ignoring the protestations that are made.
	In my intervention, I sought to address the issue of international action where that is necessary. As my noble friend has said, all the BAA airports have used the power on a voluntary basis. Airport noise has to be considered. I can see no evidence for departing from that situation at the present moment. It is not as if somehow or other the airport authorities are oblivious to the case that is often made. It is in the interests of people around the airport and all those employed at the airport that these issues should be ventilated, but in a proper way.
	The Bill extends the situation to which I have referred regarding aircraft noise to aircraft emissions as well. Why should we now insist on government compulsion? I find the Opposition's arguments on this wholly unconvincing. My noble friend has also referred to the powers in new Section 38(4) of the Civil Aviation Act 1982, which we are also likely to have before us shortly. In my view there is absolutely no evidence to support the conclusion that the Liberal Democrats, supported by the Conservatives, now seek to reach.

Baroness McIntosh of Hudnall: My Lords, I am sorry to have to say to my noble friend that the opposition to this measure does not come only from the Liberal Democrats and the Conservatives. There are also some people on this side of the House who have doubts about whether the Government are on the right track with this issue. However, I shall seek not to stray into Second Reading territory. I simply ask whether the Minister recognises that, notwithstanding the points that he made about the necessity for acting proportionately and for having balance in the argument, which I accept, the amount of research and information on the impact of noise pollution is growing at quite a rate. Nowadays, it is rare to go for a week, or sometimes a day, without seeing further evidence emerging of the damaging impact on individuals, the environment and communities of noise and carbon emission pollution.
	Therefore, I respectfully ask the Minister whether he recognises that it may not be a bad idea at this stage, given the rate at which our knowledge of these issues and awareness of the dangers that we face are growing, to have a little more strength in the way in which the regulation is effected with the airport owners than we have had in the past. I submit that it is not enough to say, "It has worked for 25 years, so why change it?". There are reasons why we need to take this matter more seriously than we have done before. There is good reason to suppose that a little more toughness might not go amiss at this stage.

Lord Berkeley: My Lords, I, too, have concerns about where we are with this Bill. I do not believe that local controls are generally working. Is that surprising, given that many airports are in competition with each other? Some are owned by local authorities and create jobs, so they would have to be very strong willed to implement controls that can be seen to affect jobs and competitiveness. The fact that this has not happened for a long time indicates where the airports' priorities are. Therefore, I have concerns about voluntary schemes.
	I remind my noble friend that air is also in competition with other modes of transport, such as road and rail, for which the Government seem happy to set ground rules and guidelines as to how competition should work. Those rules also cover environmental protection for road and rail, to try to keep a level playing field within the mode and in relation to costs. Given that in the Bill the Government have provided for variable charges for aerodromes based on noise and emissions, I fail to see why this cannot be made compulsory, as the opposition parties are suggesting.
	I have one last point. My noble friend said that there are lots of airports in this country that do not produce much noise or pollution, which is true, but I presume that, for a small airport with little pollution, the environmental and pollution charges are lower, so I would have thought that these things would come out in the wash. I do not think that this voluntary scheme is working at the moment, so I believe that there is a lot of merit in the amendment.

Lord Davies of Oldham: My Lords, I can say to my noble friend who has just spoken that small charges are still charges; if the charges are there, they discriminate against that airport compared with airports that impose no charges at all.
	Any Government would be extremely wary about additional regulations that put an extra impost on an aerodrome where there is no justification for it. Noble Lords on all sides of the House are under constant pressure to limit regulation; indeed, there is a Bill before the House that deals with these issues. Yet the moment a matter like this becomes of public concern and action is needed, but where it is clear that the Government have the power to deal with it, we have calls to impose additional regulation and to make additions to the Bill that cannot be justified.
	Of course, I recognise that aircraft produce emissions and emit noise, but my noble friend Lord Clinton-Davis is absolutely right: does anybody think that there is not pressure on aircraft manufacturers to reduce noise and emission levels? Why is it that even the largest aircraft that the world has ever seen, the A380, which is coming into service, is quieter and does less damage to the environment than many of its predecessors? That is a reflection of the fact that aircraft manufacturers are all too well aware of the pressure on airports to control these matters. Charges are in place for the major airports. We have reached this position on the basis of considerable experience of operating past legislation, and this Bill strengthens the position.
	If I did not know my noble friend Lady McIntosh so well, I would not have known which airport she was speaking about. I imagine that it is probably Stansted. My noble friend plays a very prominent role in asking the right questions of that airport when it contemplates expansion. Stansted is a designated airport under the Secretary of State's powers. The amendment that the Liberal Democrats are putting forward has no impact on that position at all. Of course, that is not to say that—

Baroness McIntosh of Hudnall: My Lords, perhaps my noble friend will allow me to say that, while I, of course, accept that I have a special interest in Stansted, I do not limit my interest to my own backyard.

Lord Davies of Oldham: My Lords, I stand chided. I would never for one moment want to suggest that my noble friend did not have a breadth of interest. I have no doubt at all that in her altruistic way she will spread her message as widely as she can. But given that she has had experience of these issues in relation to Stansted, I merely say that we already have the relevant powers. The designation powers are already operated by the Secretary of State. It is quite clear that the great controversy which surrounds the expansion of Stansted airport is a reflection of a great deal of local involvement. Anybody who suggests that the local community was a pushover as regards expansion has never heard either my noble friend or, indeed, the noble Lord, Lord Hanningfield, in other guises outside the House when they have contested these proposals.
	I maintain that what we are debating here is not the general issue of airport policy or a Second Reading of a Bill in which anything goes, but whether this legislation is—I almost made a slip of the tongue and said "fit for purpose"—appropriate and meets the requirements for regulating airports. Clearly, the Liberal Democrat amendment adds nothing to the powers that the Government already enjoy and, indeed, use.

The Earl of Mar and Kellie: My Lords, I thank all those who have taken part and, indeed, the Minister. The noble Lord, Lord Clinton-Davis, threw out a challenge about inefficient aircraft. My response to him is that, under the Government's proposals, there is more chance of inefficient and hence more polluting aircraft being used than under the amendment that we are discussing. I thank the noble Baroness, Lady McIntosh of Hudnall, for her support. I agree that we should take this issue more seriously. I was amused to think that she is a NISEBY, which means "not in somebody else's backyard".
	The noble Lord, Lord Berkeley, was to my mind certainly right when he said that a voluntary scheme becomes a form of self-denying ordinance, particularly on a new airport. He also raised the issue of economics versus pollution. I agree that if we are serious, for example about rail substitution for domestic airlines, then this amendment will definitely help.
	At the end of the day, this amendment is an argument about "may" and "shall". I cannot see terribly much compromise between the two and I think that the House will be quite glad to know that I wish to test its opinion.

On Question, Whether the said Motion (A1), as an amendment to Motion A, shall be agreed to?
	Their Lordships divided: Contents, 178; Not-Contents, 150.

Resolved in the affirmative, and Motion agreed to accordingly.
	On Question, Motion A, as amended, agreed to.
	5 Clause 2, page 2, line 41, leave out subsection (2)
	11 Clause 13, page 12, line 25, at end insert—
	"( ) But an order under subsection (2) may not provide for subsections (2) and (3) of section 2 to come into force before 1st June 2012."
	11A The Commons disagree to Lords Amendments Nos. 5 and 11, but propose Amendment No. 11A in lieu—
	Page 12, line 25, at end insert—
	"(3A) But an order under subsection (2) may not provide for subsections (2) to (4) of section 2 to come into force before 1st June 2012."

Lord Davies of Oldham: My Lords, I beg to move that the House do not insist on its Amendments Nos. 5 and 11 and do agree to Amendment No. 11A proposed by the Commons in lieu.
	We have covered this ground many times during our debates on the Bill. I shall therefore be brief. As the House will recall, Clause 2 makes amendments to Section 78 of the Civil Aviation Act 1982. That section enables the Secretary of State to take steps to limit or mitigate the effect of noise and vibration connected with the taking off or landing of aircraft at designated airports. The current legislation—Section 78(3) of the 1982 Act—does not require operating restrictions. If partial restrictions are set for this purpose, they must be in the form of a numerical limit on movements by aircraft of the types that it is intended to restrict. At present, the night flying restrictions at the designated airports—Heathrow, Gatwick and Stansted—comprise a numerical movements limit and a noise quota set for each summer and winter season. The noise quota is a supplementary measure designed to encourage the use of quieter aircraft. That is the structure of the regime that will apply at those airports from October 2006 to October 2012, as my right honourable friend the Secretary of State for Transport announced on 6 June 2006.
	In the White Paper, The Future of Air Transport, which was published following consultation on our long-standing aircraft noise ban, the Government said that they would amend the current legislation so that operating restrictions could in future be set on a different basis—for example, one more directly related to the noise nuisance caused. That is exactly what Clause 2 set out to achieve. Amendment No. 5 removed subsection 2 of that clause and removed the requirement on the Secretary of State to set a movements limit as part of any operating restriction limiting aircraft noise at a designated airport. The Secretary of State would not be prevented from continuing to set movement limits, but could consider additional alternatives; for instance if they proved a more effective incentive to use quieter aircraft.
	In proposing Clause 2 we were not seeking to reduce restrictions. We were seeking to make the restrictions more appropriate to the challenge that we face. The Secretary of State could, for example, impose a restriction in the form of noise quotas or a limiting noise contour area without specifying a maximum number of movements. I emphasise that our intention in bringing forward Clause 2 was not, and never has been, to prevent Governments setting stringent controls on night flying at airports.
	It has been suggested by opposition parties that we are seeking to remove a statutory cap on movements. As I mentioned, the legislation does not impose an obligation to set operating restrictions. It is therefore misleading and inaccurate to suggest that we are planning to remove any restrictions. The suggestion that the Government intend to relax restrictions must be seen in the context of our recent announcement on night flights at Heathrow, Gatwick and Stansted, which did not provide for any relaxation of current limits and tightened a number of controls. The Government intend to act over the next six years without any suggestion of relaxation. That demonstrates our commitment to the effective management of noise impacts.
	We do not think that the Opposition have any basis on which to sustain the claim, voiced on a number of occasions, that we are manoeuvring to allow a significant increase in night flights. I hope the announcement on 6 June that the night flight restrictions will apply at Heathrow, Gatwick and Stansted until October 2012 will put an end to the equally groundless accusations that the Government intend to ignore the basis on which they consulted and bring in a new restrictions regime on a totally different basis once these provisions receive Royal Assent. That is not our intention, and that is not what the Bill provides.
	We understand the value of movement limits to residents presently around the designated airports. That is why we have announced that they should continue to be set as part of the next regime. But movement limits alone are a pretty blunt instrument, as they would not directly control the amount of noise permitted at night. Neither could they affect the types of aircraft used at night, because as long as the aircraft meet the numbers, it is immaterial what kind of aircraft they are. That is why noise quotas are set alongside the movement limits at present to drive the use of the quietest aircraft available. That is why we are concerned to emphasise that part of the policy.

Lord Clinton-Davis: My Lords, have not the Government taken action for the long term at the WHO? The situation which the Minister described has to be tackled at an international level. Should not the Government be complimented on doing that?

Lord Davies of Oldham: My Lords, the Government certainly take pride in the initiative that they are taking internationally. As the whole House will recognise, there is a limit to what UK legislation can achieve regarding travel that is intrinsically international. As I mentioned in our previous debate, our major airports are in competition not only with each other but with airports in Europe. International action is what is required, and I am glad to take the point that my noble friend has made.
	It will be for a future Secretary of State to consider any changes to the basis on which night-flying restrictions are set after October 2012 and, in doing so, to choose to make use of the more flexible provisions that we are seeking to bring in. Any changes that we propose as a result will of course be subject to the fullest public consultation, and the eventual decisions on both the structure of the regime and the actual limit set will need to win public support and be reasonable. There is nothing in the current legislative powers, which Amendment No. 5 seeks to preserve, to prevent a future Secretary of State setting movement limits as high as he pleases or even deciding not to use these powers at all. So any suggestion that Amendment No. 5 offers some defence guarantee that goes beyond what the Government are offering at the moment is a misconception.

Baroness Tonge: My Lords—

Lord Evans of Temple Guiting: My Lords, it would be sensible for the Minister to finish his statement. Then we can have a debate on it. Thank you.

Lord Davies of Oldham: My Lords, I was about to emphasise that it is not the legislation that counts but the policy decision in the exercise of the existing legal powers which determine the effect of the restrictions on the ground. The provisions in Clause 2 would do absolutely nothing to increase night-flying limits or to make the night noise around airports worse. We believe that they would prove useful in the future in allowing limits to be set in different ways and not only on aircraft movements, but if the policy choice was a continuation of current policy, then they could be.
	Amendment No. 11 changes the commencement provisions and prevents the relevant changes in the existing legislation being brought into force before June 2012. This has given additional legal force to the commitment that I already mentioned. In other words, we have said that there will be no change to our policy of setting night-time limits on both aircraft movements and noise quotas at each airport before 2012. Amendment No. 11A, which has been offered in lieu, will correct the numbering of the provisions in Clause 2, which cannot be commenced before June 2012. Therefore, Amendment No. 11A gives effect to the commitment that the Government announced two months ago.
	The Government seek to continue a balanced approach to controlling and mitigating the noise impacts of night flying at Heathrow, Gatwick and Stansted. We are not seeking more flexible powers to use immediately, but we believe that it is right to ensure that they will be available if and when needed. Nor do we believe that any future Government would use them unreasonably. If they did, they would be subject to legal challenge. The Government remain convinced that Clause 2 is the correct way to move forward. The way forward is not to increase night movements and night traffic. It is to create flexibility in the necessary controls. The number of movements is too blunt an instrument in an age of rapid technological change. On that basis, I commend Motion B to the House.
	Moved, That this House do not insist on its Amendments Nos. 5 and 11 and do agree to Amendment No. 11A proposed by the Commons in lieu.—(Lord Davies of Oldham.)

Lord Hanningfield: rose to move, as an amendment to Motion B, leave out from "House" to end and insert "do insist on its Amendment No. 5, do not insist on its Amendment No. 11 and do disagree with Amendment No. 11A proposed by the Commons in lieu".

Lord Hanningfield: My Lords, I have listened to what the Minister said and the Government's suggestion of guaranteeing a postponement of action until 2012. That is not a concession. It offers little more than a postponement of the problem. In my time on the Front Bench dealing with aviation matters, I have not heard anything that arouses emotions more than the possibility of more night flights over London. We have to find ways of reducing night flights and not of increasing them. As the Minister said, we do not want to repeat our previous debates. However, people's health and their lives are being impaired. People need a sense of security regarding the whole problem of night flights. The Government, by adding the words of their concession, want the security of leaving the present policy as it is. If we are going to have a new policy, let us reduce night flights rather than increase them.
	During the debate in another place, the right honourable Member for Halton stated by way of consolation that the Government had not decided to increase night-time movement limits at Heathrow during 2006-12. That may give a little reassurance now, but, as I said, it only postpones the problem and does not help anyone. That applies also to Heathrow. I should, however, declare an interest. We have already talked about Stansted today—but what about Stansted and Gatwick? The Minister's comments, like the Government's amendment, offer little comfort to those whose lives are diminished by aircraft noise.
	Perhaps I may rehearse one or two arguments. Night-time aircraft noise is currently controlled by a combination of a movements limits and a noise quota system. Currently the two systems complement each other and offer a modicum of protection to those affected by airport noise. Yet, the Government have clearly indicated their desire to remove the current obligation to operate a limit on night movements at Heathrow, Gatwick and Stansted—even if it is after 2012. To do that would have devastating consequences for the millions of people living under the major airports' flight paths. Alone, the quota system is comprehensible and ineffectual. Due to the absence of an official noise index for night noise in the UK, the noise limit is worked out by using Leq, which is recognised only during the day between 7 am and 11 pm. Consequently, it fails to take account of the fact that noise has vastly different implications at night. Leq—level equivalent—is a measure of noise energy and is worked out by averaging noise levels over a 16-hour day and then expressing it as a continuous level. Under the quota system, all aircraft are rated according to their noise on take-off and approach and then banded into the quota count categories. A limit is then placed on the total number of QC points in a six-month session. The fundamental conceptual flaw in this way of regulating aircraft noise is the assumption that the real disturbance and annoyance caused by noise depends on how much overall noise there is in the sound energy emitted.
	When we last debated this issue I illustrated several examples. Today, I shall give only the example of Concorde. As noble Lords will recall, one Concorde on departure has the equivalent noise energy of 120 Boeing 757s. One Boeing 757 every two minutes for four hours therefore produces the same noise level as one Concorde. It is not about the noise of an individual plane but about how many planes there are.
	I do not think that I need go into great detail on this. We want the security of the system as it stands. The Motion fails to take into account the importance of how many and how frequent the noise events are. The same total noise exposure can be achieved with a few noisy aircraft or a larger number of less noisy ones. Furthermore, it does not make any difference to the noise dose whether those aircraft are bunched together or spaced out at long intervals during the night. Less noise does not necessarily equal less disturbance.
	The quota system is wholly inadequate for assessing the disruption of sleep caused by the impact of a relatively small number of noise events across the night. On the contrary, although those noise events may not break the noise quota, that offers little consolation to the family that have been awoken possibly once or twice or even three times a night. It is critical that we uphold the amendment. We must retain a movement limit on night flights. Not only is it effective; it is the only method that is both understood and can offer the transparency and security needed by people who live under flight paths. It provides protection for people living in close proximity to airports, though not necessarily under flight paths, from the associated problems of ground noise, something that the quota system alone would never properly address.
	The Government's suggestion of simply changing the date is inadequate. It is essential to retain the movements limit. It would not only enhance the possible advantages to be gained from a noise quota system but, importantly, ensure against its disadvantages. Without it we risk further ruining lives that are already blighted by aircraft noise. I have no doubt that your Lordships' House will join me in my resolve to reject the Government's proposal. I beg to move.
	Moved, as an amendment to Motion B, leave out from "House" to end and insert "do insist on its Amendment No. 5, do not insist on its Amendment No. 11 and do disagree with Amendment No. 11A proposed by the Commons in lieu".—(Lord Hanningfield.)

The Earl of Mar and Kellie: My Lords, we, too, are concerned about the potential increase in night flights that the Bill seems to allow after 2012, and we want to respond to the major worries expressed to us by people who live in the various affected communities. The Government's concept of a "bag of noise" that can be spread further around quieter aircraft on take-off will lead to peri-airport communities suffering from an increase in noise events late at night and in the early morning. Each of the noise events will wake up more people. These noise events are the process of taking off, which is quieter than landing, because of the steeper ascent of the aircraft. There is no intention, of course, to control landing noise. Aircraft that are landing fly slower and at full power on a shallower flight path and so produce more noise over a wider and longer area.
	Perhaps one day aircraft may be silent, but that is not today, tomorrow or any time remotely soon. There are good social reasons for opposing an increase in the number of night flights. An increase in the number of noise events will wake up more people more often, to the detriment of their health. I doubt that the Minister would believe that a grumpy people are an efficient people. For those reasons, we support the amendment.

Lord Gilmour of Craigmillar: My Lords, in the debate on this subject in the other place, a Member said that he thought that the Department for Transport was now a wholly owned subsidiary of the aircraft industry. The Government's behaviour over this Motion certainly bears that out. I understand that the Government originally said in letters to honourable Members in another place that they were going to accept the amendment; they then turned round at the last moment. I cannot help thinking that that was due to pressure from the aircraft industry.
	I do not know whether Ministers and senior civil servants in Defra are hoping for appointments in the industry when they retire. I exempt the Minister from that, but it has been extraordinary to note over the years—and not only under this Government—the level of deference paid to the aircraft industry. That is particularly true in this instance because surely even the Minister must realise that noise measurement is bogus, inaccurate and incomprehensible. The only serious measurement we can use is the number of flight movements. So why on earth are the Government bringing in this clause instead of agreeing to our previous amendment?

Baroness McIntosh of Hudnall: My Lords, I am sorry to rise again to challenge my noble friend on the Front Bench, but on this occasion I do so fully acknowledging my special interest: I live under a flight path into Stansted airport. Therefore there is no question but that I have personal experience to bring to bear on this point. I support what the noble Lord, Lord Hanningfield, and other noble Lords have said, not because I do not accept the Government's good intentions but because one does not have to be expert or well versed in this area to see that airport operators and aircraft operators are bound to aspire to an increase in the number of night flights because that is a way to get more value out of the infrastructure.
	The consequence of additional night flights is already upon us; we experience it daily if we live within range of an airport. As the Minister rightly pointed out, the reality is that some aircraft are noisier than others, although I have to admit that some aircraft are surprisingly quiet, albeit that they are still a bit noisy. If you hear them in the middle of the night, they are considerably more obviously noisy than they are during the day. Therefore the issue of the number of aircraft flying overhead at night when people are trying to sleep is more significant than the amount of noise made by each individual aircraft, and much more significant than the aggregate made by all the aircraft put together. So I contend, as I have consistently throughout the passage of the Bill, that aircraft movement is a much more important indicator of noise pollution than anything else.
	I also draw the Minister's attention to recent research indicating that aircraft movements at night have a more damaging effect on the environment than aircraft movements during the day. I do not pretend to understand the science underpinning the suggestion, although I hope to get grips with it as we learn more, but, if it is true, it is why it is much more important to limit the number of flights made at night than it is merely to address the quantum of noise produced by those flights.

Baroness Tonge: My Lords, I do not apologise for rising again. I support the remarks made by the noble Lord, Lord Gilmour, about the Government and the aviation industry. Over the past few years, I have begun to think that the Government should declare an interest when they speak about civil aviation issues because it is becoming quite obvious that aviation has been singled out among all forms of transport for favour.
	I thank the Government for deciding not to increase the number of night flights at present. That decision is very welcome, and has been welcomed by all the campaigners on this issue. But the emphasis that is being placed on quieter aircraft makes us feel quite sure that that is the means by which the Government will eventually increase the number of night flights. As the noble Lord, Lord Hanningfield, said, less noise does not mean no noise. As my noble friend said, there is no such thing as a quiet aircraft unless one counts gliders, but I do not think that they are used very much to carry passengers. So people suffer from being woken by aircraft noise even if it comes from so-called quiet aircraft.
	I should like to repeat the invitation that I have issued to every Minister of transport over the past 10 years: please come and spend a night at my house or at one of my neighbours' houses. They will not be interfered with. I will not even talk to or harangue them, because the noise of the aircraft will keep them awake. I even promise to bring them a cup of tea and a digestive biscuit in the morning to alleviate their tiredness and angst as a result of not being able to sleep properly.

Lord Clinton-Davis: My Lords, at the risk of sounding unappreciative, I resist the temptation to visit the noble Baroness's house.
	No mention has been made in the debate of noise insulation, which is very important and is happening at the moment. No mention has been made of noise quota limits, which are also significant. No mention has been made of the Government's activities within the WHO, which, in the long term, I am convinced, will come up with the right solution. This has to be done on an international basis. At the moment, the WHO is carrying out regular reviews and revisions of the guidelines. This demonstrates how important it is to evolve a policy based on international considerations. As far as sleep disturbance is concerned, again, no mention has been made in the debate about the research that has been undertaken and is being undertaken at the present time. My noble friend will doubtless say something about this. These are highly relevant omissions as far as this debate is concerned, and that is why I mention them.

Lord Davies of Oldham: My Lords, this has been a most interesting debate, although I must say to the noble Lord, Lord Gilmour, that his charge was somewhat unfair. It may have been that in the past some Ministers joined industries outside, but I have no ambitions in that area and neither has any of my colleagues as far as I know. In any case, to suggest that our policy is dictated by one dimension of the air industry is absurd. Inevitably with regard to air transport, we have a whole range of conflicting interests. After all, airports play their part in this, as do the people who live close to airports and the millions of our fellow citizens who use aircraft. So I am not prepared to accept the suggestion that the Government approach this matter as some kind of response to one particular lobby.
	I am conscious that we are dealing with a very difficult area. There is a danger that those who argue that movements are the only measurement of noise are guilty of taking a rather facile approach. There is no research that defines noise in terms of being more of a disturbance through the movements of aircraft. We do not know, and no one can say that with authority. They can use their instinctive response but that is not the same as having proof. The problems with regard to noise are either cumulative over a period of time or individual instances. Therefore the case cannot be made by any reference to research on sleep disturbance that it is the number of aircraft movements that needs to be regulated.
	If the issue was cut and dried in those terms, if science established evidence along the lines suggested by my noble friend Lady McIntosh and the noble Lord, Lord Hanningfield, and if things were as straightforward as that, then of course the Government would be able to act and present the full and clear facts to the nation on the question of the incidence of aircraft impact. But things are not that straightforward. That is why the Government merely seek the flexibility to measure noise on the basis of a recognition that a balance will have to be struck between the use of aircraft and the needs of people on the ground who want to fly.
	It will not do for the House to take that negative approach to transport which indicates that all is for the best in the best of all possible worlds at present and nothing should disturb the situation. I never thought to hear a Liberal Democrat Peer say that air travel is being particularly favoured by the Government. Where does the noble Baroness think that the huge increase in rail passenger numbers has come from, if it is not a reflection of huge investments in rail transport, supported by a Government who are all too well aware of the environmental aspects of rail but also of the demand from people for travel?
	It is no use this House being in some state of abnegation about the concept of travel. Travel is a singularly desirable good. It may become less desirable either because one has to do it because of one's job or because one is in one's more mature years, but travel is greatly valued by the great mass of our population. They use their cars frequently and they use trains with greater frequency—and the greatest expansion in travel in recent years has been in air travel. I say nothing about the virtues of cruising and sea travel. So we have a demand that must be met, and it will not do for it to be suggested in this House that there are easy answers to these questions.
	I emphasise that all that the Government are seeking is some flexibility with regard to the criteria that are adopted. It is not the case that the Secretary of State will be bound to any one policy. In fact, the binding is in the amendment, with regard to aircraft movements. If the Secretary of State in 2012, or years thereafter, decides that that is by far the best criteria, or if there is scientific evidence that establishes that that is rightly the issue that concerns most of those people who live close to airports, then the Secretary of State will have the freedom to continue to impose movement limits. But it may be that technological and social change, and even investigations of sleep patterns and the nature of disturbance, have produced a scenario in which that may not be the right policy.
	All that the Government are seeking to do through the legislation is to guarantee that there is flexibility available to any Secretary of State—and let me say that no Secretary of State will act carelessly on this matter. No one in this House should underestimate the pressures, which are reflected in the contributions made this afternoon, of anxiety at the expansion of airports, airport usage and aircraft noise. That is clearly destined to be and will remain a major issue for the nation. So any Secretary of State is bound to take into account public opinion in the balance of factors for the good of the wider society. We are merely suggesting that, within this framework, the legal position needs some flexibility, rather than just the narrow concept of movement. That is why I do not think that the amendment should be accepted.

Lord Hanningfield: My Lords, I thank the Minister for his comments and other noble Lords who have participated in the debate. The Minister said that there was no evidence that the number of flights was the main reason for disturbance, but you have only to speak to the millions of people who live under flight paths to know that it is indeed the number of flights that causes the disturbance. The thought of having many more noisy flights is terrifying to them, as the noble Baroness, Lady McIntosh, and others indicated. This amendment aims to remove that fear.
	Although 2012 is a long way away, there is a fear that by then there could be many more flights. There is also the fear that, if the Secretary of State has the powers, things might be considered before then. If there is a lot of new evidence and new technology by 2012, the Secretary of State at that time—who I expect will be from my party and would not want to increase the number of night flights—could examine the situation then. Why do we need legislation now? Our amendment gives security to those considerable numbers of people who are concerned about the matter. Let us worry about 2012 when we get there, when the then Secretary of State can confront the issues.
	I fail to understand a lot of the points that the Minister is making. Our amendment gives security to people who do not like the number of flights that there already are but will accept a restriction on numbers, which is better than nothing. I want to pursue my amendment and to test the opinion of the House.

On Question, Whether the said Motion (B1), as an amendment to Motion B, shall be agreed to?
	Their Lordships divided: Contents, 185; Not-Contents, 128.

Resolved in the affirmative, and Motion agreed to accordingly.
	On Question, Motion B, as amended, agreed to.

Government of Wales Bill

Lord Evans of Temple Guiting: My Lords, I beg to move that the Bill be now further considered on Report.

Moved accordingly, and, on Question, Motion agreed to.
	Clause 92 [Assembly Measures]:

Lord Kingsland: moved Amendment No. 36A:
	Page 50, line 37, at end insert ", adopted by resolution of each House of Parliament"

Lord Kingsland: My Lords, in moving Amendment No. 36A I shall also speak to Amendments Nos. 60A, 60B and 60C. All these amendments qualify the decision to adopt a Welsh Assembly measure in the Privy Council by requiring that the measure, prior to the Privy Council decision, is adopted by a resolution in both Houses of Parliament. In order for me to put these amendments in context, it may be helpful to the House if I remind your Lordships of the statutory scheme in Part 3 of the Bill. It is a scheme of breathtaking complexity. I said, earlier, that it was serpentine in conception and labyrinthine in application. If anything, that is an understatement.
	The procedure involves a two-stage statutory scheme for devolving power to the Welsh Assembly by a system of Orders in Council. Stage one of the process delegates to the Welsh Assembly, by Order in Council, the power to legislate on certain matters in certain areas that appear in Schedule 5 to the Bill. The second stage, stage two, gives the Welsh Assembly the authority to make what are called Assembly measures, as long as those measures are within the scope of the order passed at stage one.
	Rather confusingly, Part 3 of the Bill starts not with the stage one orders, but with the stage two orders; that is to say, the orders that confirm the Assembly measures. It then goes on to consider stage one orders, the devolving orders. This amendment concerns the end of the Part 3 legislative procedure, stage two orders, not the beginning.
	I felt it necessary to say that before I turn to the amendment itself. The issue behind the amendments is whether the procedure set out in Part 3 is a subordinate or a primary legislative procedure. If your Lordships were to glance at the proceedings in another place, particularly the speeches made by the right honourable gentleman Mr Hain, you would quickly apprehend that he was extremely concerned to emphasise that this procedure was a subordinate procedure. The Government do not want to admit that, without a referendum, they are delegating primary legislative powers to the Welsh Assembly through the Bill.
	The reality, of course, is that it is not a subordinate procedure, though there are certain exceptions to which I shall come in a minute. The provisions in the second stage Order in Council are automatic, following the decision of the Welsh Assembly. That was recognised by the noble Lord, Lord Thomas of Gresford—I see him nodding—in an exchange that I had with him in Committee.
	There is a constitutional convention that whenever an Order in Council is to be made in the Privy Council, it is first tabled both in your Lordships' House and in another place for a certain period of time. Sometimes the procedure is the procedure of negative resolution and sometimes it is the procedure of affirmative resolution, but the order is always tabled in draft before it goes to Buckingham Palace. Why is that not the case in this Bill? Why are the Government breaking that constitutional convention for subordinate legislation?
	In Committee, in an exchange I had with the noble Lord, Lord Davies of Oldham, who I see is in his place, when I suggested that the parliamentary procedure should be interposed, the Minister said:
	"I am saying to the noble Lord that it is a complete denial of devolution to suggest that, after the Assembly—a democratically elected body with its own direct mandate—has had the approval, won through Orders in Council, to use its discretion in a particular area and then takes measures, Parliament should intervene again".—[Official Report, 3/5/06; col. 550.]
	In other words, the Government are saying that this is a subordinate procedure, but that for some extraordinary and unarticulated reason the convention in relation to subordinate measures should not apply. The noble Lord, Lord Davies, is using precisely the argument which convinced the noble Lord, Lord Thomas of Gresford, that we are in reality talking about primary legislation.
	I have one further observation to make about the noble Lord's intervention at col. 550. Why is Parliament not allowed to interpose itself between the Welsh Assembly measure and the Buckingham Palace procedure, when the Secretary of State is? If the noble Lord, Lord Davies of Oldham, turns to Clause 100, which is entitled Power to intervene in certain cases, he will see that although Parliament is not allowed to have any further say, the Secretary of State is. I apologise for the tedium but it is worth reading out the relevant subsection to your Lordships' House.
	Clause 100(1) states:
	"This section applies if a proposed Assembly Measure contains provisions which the Secretary of State has reasonable grounds to believe—
	(a) would have an adverse effect on any matter which is not specified in Part 1 of Schedule 5,
	(b) might have a serious adverse impact on water resources in England, water supply in England or the quality of water in England,
	(c) would have an adverse effect on the operation of the law as it applies in England, or
	(d) would be incompatible with any international obligation or the interests of defence or national security".
	Clause 100(2) says:
	"The Secretary of State may make an order prohibiting the Clerk"—
	that is, the Clerk of the Assembly—
	"from submitting the proposed Assembly Measure for approval by her Majesty in Council".
	So, in the context of Clause 100, what of the democratic rights of the Welsh Assembly? They can be interfered with by the Secretary of State, but the democratically elected Parliament of the United Kingdom is not to be allowed to have any further say. In my submission, these clauses are complete hypocrisy and should be expunged. I beg to move.

Lord Thomas of Gresford: My Lords, I regret that we are unable to support these amendments. The noble Lord referred to my contribution on the second day of Committee and to some of the things that I said, which bore repetition because the noble Lord, Lord Crickhowell, also set out in extenso my views on Part 3. The noble Lord, Lord Crickhowell, referred to the fact that I had said that this was an ingenious and tortuous device to bring in legislation without having a referendum. We accept that that is the position. We also accept, however, that the proposals of the Government, which are not very satisfactory and certainly do not match the aspirations of the Liberal Democrats in Wales or in the United Kingdom, are, nevertheless, a step in the right direction.
	This amendment proposes to introduce a further complication by requiring that the measures which the Welsh Assembly has passed, within the powers granted to it by an earlier Order in Council, should require a resolution of each House of Parliament before they can be put into effect. It would also require that each House of Parliament should have a further chance to block the measures that are passed by a democratically elected Welsh Assembly through Clause 101. I repeat that I am not happy with the way in which these proposals have been put forward, and neither was the noble Lord, Lord Richard. I do not know whether the noble Lord, Lord Rowlands, supports them. He was a member of the Richard commission which came forward with a solution that was perfectly satisfactory to us; namely, that the Welsh Assembly should move towards having primary powers and that it should be reconstituted in such a way as to give to the Assembly a mandate for carrying out its policies. I repeat that this is not a satisfactory solution, but the amendments put forward at this stage by the noble Lord, Lord Kingsland, make it even worse. I regret to say that we cannot support it.
	Before I leave this subject, I am grateful to the noble Lord, Lord Evans, for handing to us a press release issued today by the Secretary of State for Wales, Peter Hain. He regards our attempts to improve this Bill as "petty mischief-making"—that is the expression he uses—and says that the Lords,
	"must stop playing games with the future of Wales and must stop obstructing the Bill".
	I think he has lost his marbles. I do not know what concept he has of the constitution of this country or the powers of this House. If we are not here to try to improve this Bill and to bring in amendments to it, we may as well all go home. Mr Peter Hain has no idea of what he is talking about, and if there is any mischief-making going on it is his, presumably to gain some sort of electoral advantage to the Labour Party. It is him who is making allegations which certainly attack the dignity and powers of this House.

Lord Anderson of Swansea: My Lords, it is not for me to interpret the words of the Secretary of State in terms of petty mischief-making, but I think a number of us shared a certain irritation yesterday when there was a playing with words. The word "audit", for example, was excised from the Bill and replaced with another word, which causes a whole series of repercussive changes—consequential changes—throughout the Bill. If I can divine the meaning, in a very humble way, of what the Secretary of State was saying in that press release, perhaps he was referring not to some of the other measures that this House passed but to "audit", which seemed to be a rather arbitrary and, in my judgment, very wrong use of the power of this place.
	In respect of this amendment and the general question, I think I am with the Government on it, but the Government should give a reply to the concerns raised in the other place by the Father of the House, the right honourable Member for Swansea West. Essentially, he argues that by this device and by not having the additional safeguard of parliamentary endorsement, which is part of this amendment, the Government are moving towards a primary legislative position step by step. To move totally to a primary legislative power for the Welsh Assembly on the lines of the Scottish Parliament would be a major change in the rules of the game and a major change from what the people of Wales only just agreed in the referendum. Only 50 per cent of the electorate in Wales bothered to vote in spite of the Government, after a major election victory, campaigning strongly for it. The result was 25 per cent "for", 25 per cent "against". That was not part of the package put before the people of Wales in the referendum. Nevertheless, one could conceive of a position where the Government, or a future Government, would by a series of small steps avoid the "big bang" of a referendum. That danger has been expressed very eloquently in the other place by the Father of the House and I think it deserves a considered reply. Although I am minded to support the Government, I would be grateful to know how the Government seek to respond to that very genuine concern.

Lord Elystan-Morgan: My Lords, I wish to concentrate on what I regard as the basic postulate of the case put forward with such charm and lucidity by the noble Lord, Lord Kingsland. His case—I hope that I do justice to it—is that this is essentially primary legislation that Parliament is not entitled to deal with in the normal way. If he is correct in that, it is a serious charge that deserves to be answered by some change in the whole structure or in some other way. However, with very great respect, I believe that he is wrong. That is not only my personal view—I shall quote from page 65 of the Explanatory Notes. As I understand it, these notes are drawn up in a neutral way by people of considerable expertise and experience who try as best they possibly can to set out an accurate legal position. If they are wrong it would be contrary to the experience of Parliament in relation to the standard of Explanatory Notes. Paragraph 320 states: "This clause"—that is, Clause 92—
	"confers on the Assembly the power to make a type of subordinate legislation in relation to Wales".
	I quoted that previously in Committee and I went on to quote further the statement later in the same paragraph to the effect that of course the Westminster Parliament still has a parallel right to legislate. I was chided mildly but politely and firmly by the noble Lord, Lord Norton, in an intervention lasting seconds rather than minutes. I do not know whether it was my unnatural shyness or the onset of early arthritis but I did not manage to get my feet in time to intervene. He was entirely wrong to say that that was a flawed argument. I was not at all arguing the point about Westminster's right to legislate; I was relying on the considered, objective, competent opinion of the compilers of the Explanatory Notes. If I am right about that, the case put forward so attractively by the noble Lord, Lord Kingsland, falls.

Lord Crickhowell: My Lords, I had not intended to intervene in the debate on this amendment, particularly after this formidable exchange of legal opinion. However, if we are going to have authoritative statements quoted from outside, we should attach some significance to the views of the noble Lord, Lord Richard, who, with the noble Lord, Lord Rowlands, and others studied this matter in great detail. I remind the House that he said of "this device"—that is what he called it—that,
	"Westminster can say they have not devolved primary legislative powers, but depending on the way in which the Order in Council procedure is used, it could in effect be a concealed grant of almost a direct legislative competence down to Cardiff".
	If it has not got there, it is pretty close to it and we need some elucidation. We also need elucidation for the reasons that the noble Lord, Lord Anderson, raised.
	I make two other observations. The first is that I agree with the statements of the noble Lord, Lord Thomas of Gresford, about the press handout. It seems likely that its primary purpose in being issued today was to seek to avoid the Labour Party getting another bloody nose in the Blaenau Gwent by-election. If we are really going to have this House insulted for no other purpose than that, we have got into a pretty shocking state of political play. Secondly, I say to the noble Lord—I shall enlarge on this when we come to later amendments—that I still find his position very hard to understand. Having said that all of this part of the Bill is highly unsatisfactory and that he would much prefer Part 4, he is reluctant to allow a referendum to be held that would allow the people of Wales to say, "Yes, we want to go on" with what the noble Lord, Lord Elystan-Morgan, called in an earlier debate Gladstonian home rule. He wants it, but he is not prepared to ask the people of Wales whether they want it too. However, we shall return to that subject with later amendments.

Lord Rowlands: My Lords, I thank the noble Lord, Lord Thomas, for mentioning my membership of the Richard commission. The commission indeed recommended that there should ultimately be a full transfer of primary powers, but also recognised that there would be a long interim period, not of months but years. It explored the possibilities of enhanced legislative powers being given to the Assembly in that interim period, so that it could exercise them before the possible transfer of primary powers, subject to a referendum and the rest of it.
	We did not consider the particular device contained in Part 3; we looked at other forms, like framework legislation. But I find Part 3 satisfying in that it deals with and offers, in this period of whatever length, the opportunity for the Assembly to have enhanced competencies. I therefore support Part 3, and certainly do not support the Opposition's amendment. Frankly, I find it difficult to understand how either House could possibly decide by a vote, affirmative or otherwise, on a measure that it had no part in developing.

Lord Davies of Oldham: My Lords, the noble Lord, Lord Kingsland, said that these were labyrinthine and serpentine proposals. He, at least, has been crystal clear. He has reflected the deep doubts in the Conservative Party about devolution. That is what the amendments reveal: they have reduced the Assembly to the status of a parliamentary committee, every measure passed by the Assembly requiring approval by both Houses of Parliament. As the noble Lord, Lord Thomas, indicated, he may have some doubts about aspects of devolution and the proposals in the Bill, but he can recognise a denial of the concept when he sees it.
	Requiring measures to be ratified by Parliament would not just stop the present state of power in Wales; it would be a step backwards. It would place the Assembly under restrictions more stringent than exist in the current settlement. There is little point in a process of controlled devolution to the Assembly if the legislation it passes has to be approved by Parliament before it becomes law.
	We should not be surprised at the challenge from the other side because, although we got four different approaches to devolution from the Opposition Benches at Second Reading, there was no security in their position. That has now been revealed as they challenge this Bill in detail. As things stand, the Assembly can make its own secondary legislation without recourse to Parliament. Using framework powers, such as those contained in the NHS Redress Bill—which has been considered and approved by this House—the Assembly can make laws similar in scope to an Assembly measure. There is no ratification requirement, such as that proposed in the amendment, because that Bill becomes an Act of this sovereign Parliament, allowing a framework in which decisions can be taken in Wales.
	The noble Lord, Lord Kingsland, seems to find the principle behind that objectionable. I have not heard him or his colleagues object to framework Bills passed by this legislature, but perhaps they are getting round to that. There is no difference between the proposal in the Bill and the framework provisions in a Bill like the NHS Redress Bill: Parliament deciding on the principle and the Assembly deciding on the detail in Wales, on behalf of the Welsh people. The party opposite did not present opposition to the NHS Redress Bill, but approved it.
	There are one or two other matters that I think deserve serious consideration in response to this debate. I recognise an old Swansea alliance when I see one because my noble friend Lord Anderson reflected anxieties expressed in the Commons by his erstwhile colleague the Father of the House about conferring primary legislation. That is not the case; what is being sought and provided here is that the provisions for the Assembly should be within the framework of the powers given by the Orders in Council in the first instance. It is then open to the Assembly to present proposals for enhancing its powers but, as noble Lords recognise, that process would take a considerable period of time and be within the framework of this Bill and the 1998 Act, which clearly define the limits of the Assembly's competence.
	As for the power of the Secretary of State to intervene on proposed measures before they are approved by the Queen, we are not talking about the Orders in Council, which potentially enable the Assembly to propose measures; we are talking about measures that the Assembly proposes in areas that have been vouchsafed to it by previous Orders in Council. We are then talking about the Secretary of State being able to intervene if, in his judgment, what is being contemplated by the Assembly raises significant and serious issues. That provision obtains in the Scotland Act in relation to the Scottish Parliament, and it was the judgment of this Parliament—of this House and another place—that this reserve power is necessary. That is not the same as saying that we are going back to a parliamentary process of scrutiny because that would be to destroy devolution entirely; it is to say that there may be circumstances in which the Secretary of State reaches a judgment that is different from that of the Assembly in certain areas.
	We had an extensive debate yesterday, and we are destined to debate further ramifications later today regarding the crucial issue of the resource of water—we all know there is a particular relationship between the amounts that obtain in Wales and the amounts of which the English nation has always been able to avail itself. Areas such as that have particular significance above and beyond Wales. Therefore, there must be some element of reserve. That is all that is reflected there. So this provision does not suggest full parliamentary scrutiny. It does not mean that; it is a reserved position. But, overall, the Bill creates the opportunity for increased measures of self-governance with regard to Wales, and the noble Lord, Lord Kingsland, despite the extremely attractive manner in which he presented the amendment, is bent on wrecking.

Lord Kingsland: My Lords, I shall be as telegraphic as I can in responding to the various points raised during the debate. First, the Minister suggested that the Opposition are in some way against devolution. The noble Lord knows that to be untrue. We said repeatedly throughout the debates at Second Reading and in Committee that we are for devolution—for Part 4 of the Bill—provided that it is introduced by a referendum. We know why the Government will not hold a referendum in Wales: it is because they know that they would lose it. That is in terms what the Minister said on Report in another place.
	The noble Lord, Lord Rowlands, suggested that your Lordships' House and another place should play no further part at stage two, following the decision of the Welsh Assembly to enact a measure, because neither another place nor your Lordships' House had any part in formulating it. I suggest to the noble Lord that that is not a powerful argument. Whenever we have considered a draft statutory instrument, by either the negative or the affirmative procedure, we have had no role in formulating that instrument. That is entirely the task of the department that places it before us. We have had no influence on its content. All we can say is yes or no. I am always extremely attracted by the way in which the noble Lord makes his arguments but, with great respect to him, I do not think that the argument he advances for his cause holds any weight in this context.

Lord Rowlands: My Lords, in most cases, the old traditional statutory instruments of the kind he has described have flown from primary legislation that has been fully subject to debate in both Houses.

Lord Kingsland: My Lords, with great respect to the noble Lord, that makes my case a fortiori. Under our constitution, we have a double lock on all legislation, whether primary or secondary. As the Government insist that we are dealing with secondary legislation here—the noble Lord, Lord Elystan-Morgan, has confirmed that—that is a very good reason for having a double lock in this case. The Minister drew your Lordships' attention to the case of framework legislation. Framework legislation has a double lock. There is the skeleton Bill and all the instruments under it must come to your Lordships' House and another place for confirmation, by either the negative or the affirmative procedure.
	This is primary legislation clothed as secondary legislation. The Government should have had the courage to admit that, but they have not; they have chosen the subordinate course. They cannot have it both ways. If they insist that this is subordinate legislation, they must respect the conventions of our constitution and bring these measures to your Lordships' House and another place. I should like to test the opinion of the House.

On Question, Whether the said amendment (No. 36A) shall be agreed to?
	Their Lordships divided: Contents, 118; Not-Contents, 178.

Resolved in the negative, and amendment disagreed to accordingly.

Lord Kingsland: moved Amendment No. 36B:
	Page 50, line 39, leave out subsection (3).

Lord Kingsland: My Lords, Amendment No. 36B seeks to remove from the Bill Clause 92(3), which states:
	"The validity of an Assembly Measure is not affected by any invalidity in the Assembly proceedings leading to its enactment".
	I shall also speak to Amendments Nos. 36C, 60D and 72A. Amendment No. 36C refers to Clause 92(4), which states:
	"Every Assembly Measure is to be judicially noticed".
	We also seek to excise that subsection. The language of Clause 92(4) is, if not in terms then in intent, repeated in Clause 101(4) and Clause 114(7).
	One thing established by the exchanges on the previous amendment is that both the Government and we, ourselves, accept that the procedure that we are considering is subordinate. If that is so, what on earth are subsections (3) and (4) of Clause 92 doing in the Bill?
	It is true that the same provisions appear in both the Scottish and the Northern Irish devolution Acts—an identical provision to Clause 92(3), for example, appears in Section 28(5) of the Scotland Act 1998 and in Section 5(5) of the Northern Ireland Act 1998. But the nature of the devolution in Northern Ireland and Scotland is quite distinct from the nature of the devolution that we are entertaining in Part 3 of this Bill. It is clear from those Acts that primary legislative powers have been devolved to the Scotland and the Northern Ireland Parliaments and therefore it is appropriate that a provision like Clause 92(3) should appear in that legislation. Exactly the same common law rule applies to our own Parliament.
	However, since the Government have now accepted that the legislative process under Part 3 is subordinate, surely subsections (3) and (4) of Clause 92 have no place in the proceedings of the Welsh Assembly. Because subordinate legislation is being determined in relation to a statutory framework decided under Clause 94, procedural defects in the making of that legislation ought to be the basis for judicial intervention, as is true for all subordinate measures. These amendments reflect the logic of the Government's assertion in all our debates so far that this is subordinate legislation. I beg to move.

Lord Davies of Oldham: My Lords, I am obliged to repeat the arguments that I made in Committee. The Government do not believe that the work of the Assembly should be impeded by legal challenges that might be entirely spurious. No legal challenge can be made in respect of things done in Parliament as set out in Article 9 of the Bill of Rights, on which I know that Members of the Opposition are great authorities in this day and age. Further, as the noble Lord conceded, similar provisions to these subsections appear in the Scotland and Northern Ireland Acts, so the principle has been established.
	If legal challenges to Assembly measures or Acts were allowed on purely procedural grounds, that could give rise to significant problems in terms of delay and legal certainty. Such challenges could be brought following any technical error in complying with the Assembly's procedures for passing measures, which could lead to problems over whether a proposed measure or Bill subject to such challenge could be approved by Her Majesty, or, if approved, whether the measure or Act would be vulnerable to being struck down by the courts. This would leave the law in a very uncertain position and could be dramatically and disastrously unfair.
	Let us look at the process whereby the Clerks put before Her Majesty an eventual measure after the Order in Council has been proposed giving the Assembly the right to pass it. If that measure is passed within the Assembly's competence and goes to Her Majesty to be signed in Council, a challenge could be made on the grounds that the Clerk of the Privy Council or the Assembly had failed in some technical way. Of course we know that those distinguished personages do not make mistakes, and we are grateful for that. But if they did, the whole process would collapse.

Lord Anderson of Swansea: My Lords, what would be the remedy if there were to be a major procedural irregularity?

Lord Davies of Oldham: My Lords, we are talking not about major procedural irregularities, but about administrative mistakes. I am talking about technical errors which, if challenged, would be recognised as such. The entire decision of the Order in Council would not be annulled as the result of such minor slips.

Lord Anderson of Swansea: My Lords, what if it were a major error?

Lord Davies of Oldham: That is a different matter altogether, my Lords. A major error would mean that the Assembly, in its due scrutiny of the issue, would have made a mistake that the Secretary of State, in examining the measure before he sees it move on to an Order in Council, did not see. I merely make the obvious point: we do not make major mistakes of that kind in legislation. But if we did, there would be legal redress. The law as then enacted would be challengeable in the courts. While of course we would not deny the right of any British citizen to take an issue to court and seek a judgment in his favour if he had been arraigned as the result of a major error, we are talking about technical slips—that is the purpose behind these provisions.

Lord Thomas of Gresford: My Lords, does the Minister accept that a devolution issue would be dealt with under Schedule 9? If there were a fundamental flaw in relation to the vires of the Assembly in passing a piece of legislation, it could be challenged either by the Counsel General or the Attorney-General, or it could be referred by the magistrates' court or the High Court in the way set out in that schedule.

Lord Davies of Oldham: My Lords, I am grateful to the noble Lord for pointing out that additional ramification. The whole point of the process is to ensure that there are checks and balances. But let me emphasise that this group of amendments is designed largely not with major issues in mind, to which my noble friend drew attention, but with technical points in mind.

Lord Kingsland: My Lords, the Minister will be extremely concerned to hear that I am satisfied with his reply. His rhetoric was dismissive, but the examples that he gave were very helpful. On that basis, and given the manner in which he has supported the provisions of this clause, I am more than happy to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendment No. 36C not moved.]

Lord Elystan-Morgan: moved Amendment No. 37:
	Page 51, line 2, at end insert ", but such power shall not be exercised without there having first been full consultation with the Assembly"

Lord Elystan-Morgan: My Lords, subsection (5) of Clause 92 states:
	"This Part does not affect the power of the Parliament of the United Kingdom to make laws for Wales".
	My amendment seeks to qualify what is otherwise an absolute authority by stating,
	"but such power shall not be exercised without there having first been full consultation with the Assembly".
	I appreciate that this suggested amendment will never be carried and that, if it were to be, it would have no effect for the simple reason that the mother Parliament in respect of the Welsh Assembly, Senate or Parliament, whatever we call it, will always have that residual longstop authority.
	The reality of this was brought home to me very forcefully some 20 years ago when the dominion of Canada became a republic. The British North America Act 1867 was amended by this House, not by the Canadian Parliament. This House had retained the absolute and ultimate authority in that respect. If Australia ever becomes a republic, it will be for this House to pass the legislation. It follows, therefore, that the ultimate authority will always be here. One may well question the point of suggesting any amelioration of that authority. It is this: there are two sides to the coin; one side could lead to abuse and the other could lead to very considerable practical convenience.
	The abuse would arise if the Welsh Assembly passed a measure in a devolved area with which this House was not happy—let us assume for a moment that Part 4 was in operation—and within a month this House passed legislation that was utterly contrary to it, thereby showing its contempt for the very existence, I would argue, of the Welsh Assembly.
	The other side of the coin is this. Let us suppose that legislation is needed speedily—for instance, in the realms of housing, roads and education—and that it applies to both Wales and England. If the Welsh Assembly is not geared to deal with that in a matter of days or weeks, as might be necessary, it would be very convenient to allow this House to legislate for both jurisdictions.
	This is exactly what happens in Scotland. I understand that at Committee stage in 1998, when the Scottish Bill was going through this House, what is called the Sewel convention—which is named after the noble Lord who, as Minister, was dealing with the Bill—was agreed. This convention in no way creates legislation or any contract—it might be described as an understanding binding in honour only—but it is a very powerful development. Its effect is that the Westminster Parliament has undertaken not to intervene in any Scottish matter unless requested to do so by, and with the consent of, the Scottish Parliament.
	I am asking that the Minister should give thought to introducing a formal convention on the lines of the Scottish model, which I think would be amply justified. It is a case not only of endorsing and protecting Welsh rights, but of protecting in the future what one hopes will be a very fulsome and proper relationship between this House and the Welsh Assembly.

Lord Crickhowell: My Lords, I am grateful to the noble Lord for giving way. I have been listening to what he has to say with great interest, but I am a little puzzled as to exactly what he is suggesting. The Scottish situation is clearly different. That country has its own legal system and full legislative authority—the Gladstonian home rule of which the noble Lord has spoken. But if, let us say, the Home Office is producing legislation—as it seems likely to and has done so frequently in the past—does the Home Secretary have to consult with the Welsh Assembly about every aspect? As it goes through Parliament and is amended by the House, does he have to go back to the Assembly and seek authority for changes? I am not at all sure. Clearly in the Welsh case there are great areas which are not being devolved and for which the Westminster Parliament is responsible. I am trying to probe the noble Lord as to how far this consultation process is expected to go.

Lord Elystan-Morgan: My Lords, I am sure that it is my fault, but I think that the noble Lord, Lord Crickhowell, might have misunderstood the situation. The amendment does not change in any way the demarcation between the Scottish jurisdiction and the Westminster jurisdiction. The Westminster jurisdiction would be there in any event but would be used only at the behest of the Scottish jurisdiction. I understand that it has been used on scores of occasions since 1998. I think that I am right in saying—I shall be corrected if it is not the case—that the crime Act of 2002 made possible rapid seizures of moneys that were the subject of crime or the consequences of crime. If there had been no appropriate Scottish statute, those funds could have been moved across the border very easily. So, rather than going to the trouble of making such an Act, the Scottish Parliament requested this House to do so.
	In such circumstances, this measure could be of immense importance to both Houses. It would safeguard what otherwise would be the constitutional monstrosity of this House and the House of Commons, having devolved power, nevertheless reneging on that or derogating from this Parliament. I beg to move.

Lord Norton of Louth: My Lords, I agree with the intent behind the amendment. The noble Lord, Lord Elystan-Morgan, is quite right to put it forward as a desirable position. However, I would query the case for putting it on the face of the Bill. I think that the issue would be better addressed by a statement from the Dispatch Box.

Lord Elystan-Morgan: My Lords, I was not suggesting that it should be on the face of the Bill; I was only using the amendment as a way of raising the matter. It should not be on the face of the Bill. It should be a convention, binding in honour only, the same as in Scotland.

Lord Norton of Louth: My Lords, I am grateful to the noble Lord because that makes my point. I was going to suggest that it would be better to develop what might be called "Davies motions", which would be analogous to Sewel motions because of a statement from the Dispatch Box. If this was on the face of the Bill, there would be inherent problems in terms of justiciability and what is meant by "full consultation". I am gratified by what the noble Lord has said.

The Earl of Mar and Kellie: My Lords, there is no doubt that the Sewel convention is working well—indeed, it may be working better than was expected. The only problem with it—this is a complaint from the opposition parties—is that, when a Sewel motion is brought before the Scottish Parliament, Members of the Parliament are not clear whether they are supposed to be debating the issue that they are then going to ask this Parliament to decide on, or whether they are just debating an administrative transfer.

Lord Davies of Oldham: My Lords, amity has broken out on all sides. My only regret is that the noble Lord, Lord Kingsland, has not intervened to say how much he approves of the concept behind the amendment. But I am sure that he silently does.

Lord Kingsland: My Lords, the point that I would have wished to have made has been perfectly articulated by my noble friend Lord Norton of Louth and there is no need whatever for me to say anything.

Lord Davies of Oldham: My Lords, the noble Lord's self-denying ordinance is a lesson to us all.
	Obviously the noble Lord, Lord Norton of Louth, has summed up the response that I would otherwise have given to the noble Lord, Lord Elystan-Morgan. There are obvious advantages in consulting on legislation that can be passed by this Parliament. We have indicated that in previous discussions about the Bill. It is clearly the case that, on certain occasions, the interests of Wales could be advanced more adroitly and effectively by legislation passed in this Parliament for the whole of the United Kingdom, of which Wales would be a part, in which case consultation would need to be carried out.
	It is not for us to prescribe on the face of the Bill a Sewel-type convention. I think that we should be very careful about the name when we eventually arrive at it—so I am not accepting the suggestion of the noble Lord, Lord Norton—but a process similar to that would be of advantage.

Lord Elystan-Morgan: My Lords, I should have made this point earlier. The practical effect of the measure is not so much to curb the mother Parliament—it does not need curbing, because it would not be abused in that way—as to remove all doubt, as far as the Scottish Parliament is concerned, about whether it would be entirely proper for this House and the House of Commons to intervene. Once you have cleared the air by making a formal request under that convention, all doubt is removed. That is the real value of it.

Lord Davies of Oldham: My Lords, I accept that point entirely. I think that the whole House is of one mind about the desirability of this process. I hope that the whole House is also of one mind in agreeing that we would like the noble Lord, having aired the issue, to withdraw his amendment on the basis that we expect to achieve this objective without a legislative format.

Lord Elystan-Morgan: My Lords, I shall certainly do that. I am grateful to everyone who has spoken in support of the measure and for the fact that such amity has broken out in all parts of the House. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Turner of Camden: My Lords, I remind your Lordships that, if Amendment No. 38 were passed, I could not call Amendment No. 39 by reason of pre-emption.

Lord Kingsland: moved Amendment No. 38:
	Leave out Clause 92.

Lord Kingsland: My Lords, Amendment No. 38 and all the other amendments in its line seek to remove Part 3 from the Bill. I spoke at some length on this matter in Committee on 3 May, at cols. 519 to 521 and 530 to 533 of Hansard. My mind has remained unchanged since then, so I need do no more than summarise what I said on that occasion.
	There are four reasons why this part should be removed. The first is a drafting reason, the second concerns the lack of a referendum, the third relates to the minimised involvement of your Lordships' House and another place and the fourth concerns the degree of discretion that is transferred from Part 3 to the Secretary of State.
	I can deal with the first point very briefly. As I said in the discussion on the first amendment, the structure of Part 3 seems entirely illogical. The natural process is, first, for authority to be delegated by Parliament to the Welsh Assembly to do certain things additional to those that it does at the moment; and, secondly, when it has that general authority, to enact particular measures that conform to the delegated powers.
	Your Lordships may think that that is the way in which Part 3 ought to be set out—but not a bit of it. Part 3 starts in Clause 92 with stage two and making Welsh Assembly measures. It then goes back in Clause 94 to the act of delegating the authority to legislate to the Welsh Assembly and, at the end, comes back again to Assembly measures. My minimal requirement is for the Government to go away at this stage and reorder the clauses in Part 3 so that the Bill can make more sense to the electorate. I challenge anyone to understand before they have read it at least three times. It is plain throughout the deliberations in another place that as many interventions were made on the basis of misunderstanding as on the basis of true understanding—and that applies to government Ministers as well as to Back Benchers.
	My second reason for removing the part is the absence of a referendum. We have said repeatedly from these Benches that we would be entirely content for Part 4 of the Bill to become operative following a referendum. We would far prefer that Part 4 formed the basis of Welsh devolution than Part 3. Indeed, I would go as far as to say that I would prefer Part 4 to form the basis of Welsh devolution without a referendum than Part 3. I am not very well disposed towards referendums, as I think that they undermine the system of representative democracy in this country. But the fact of the matter is that the powers of the Welsh Assembly were originally devolved following a referendum; and I do not see how a further act of devolution can be undertaken without a further referendum.
	These points were well canvassed in another place. Mr Ainger, the Minister in another place, said with complete openness and frankness that the reason why the Government had not contemplated a referendum was that they knew that they were not going to win it. Mr Ainger based his approach to the absence of the need for a referendum with respect to Part 3 on the manifesto; but there is nothing in the manifesto to indicate that Part 3 was in the Government's mind before the election. There was a debate about devolution, but that was entirely limited to the proposals put forward by the commission chaired by the noble Lord, Lord Richard. In short, the absence of a referendum ought to be fatal to Part 3.
	Then there is the third issue of parliamentary involvement. We have already looked at that in some detail when considering Amendment No. 36A and I do not wish to say any more about it, as it is a matter on which your Lordships' House has already voted. The fact is that there is no parliamentary involvement in stage two. As for stage one, under the Bill there is the same parliamentary involvement as in the making of any Order in Council. Parliament has a short opportunity to debate, with no opportunity to amend, followed by a take-it-or-leave-it vote. That seems entirely unsatisfactory when one considers the monumental constitutional consequences of what we are doing in Part 3.
	The Government to some extent recognised this in another place when they suggested a pre-legislative process involving perhaps both the Welsh Affairs Committee and the Welsh Grand Committee. Mr Ainger foreshadowed the possibility that amendments by these committees would be seriously considered by the Welsh Assembly in considering the final draft of the Order in Council; but at no stage will Parliament have any opportunity to amend the draft Assembly measure for adding to the fields contained in Schedule 5. Moreover, at no stage have the Government given any indication that they might allow Parliament to amend that draft Order in Council. This is wholly unsatisfactory, given the scale of the issues that the Bill confronts.
	Finally, the Government's rhetoric suggests that this is a big transfer of powers from one Parliament to another; but that is far from the case, as one sees when one grapples with the detail of the Bill. The real shift in power is from this Parliament to the Executive and the Secretary of State. We have already seen, in the second stage process under Part 3, that the Secretary of State can under Clause 100 intervene to prevent a Welsh Assembly measure, properly passed by the Welsh Assembly under clear delegated authority under Schedule 5, being considered by the Privy Council. As for the first stage devolution, the Secretary of State has wide powers to prevent the draft Order in Council going to Buckingham Palace.
	We consider any one of these considerations to be sufficiently powerful to ask the House to excise Part 3 from the Bill. In our view, all four of them make out of a case of the greatest cogency. I beg to move.

Lord Thomas of Gresford: My Lords, I am sure that it will not surprise the noble Lord, Lord Kingsland, to hear that we on these Benches do not support him on this series of amendments. However, he said some interesting things, which I may comment on.
	The noble Lord referred to Mr Nick Ainger saying that a referendum would be lost, but I do not think that it would be. Since the Assembly has come into being, the fears that were expressed at the time of the referendum, of south Wales being dominated by Welsh-speaking people in the north and north Wales—particularly my part of north Wales—being dominated by people in the south, have disappeared. The step has been taken; the Assembly is now an accepted part of the life of Wales and, particularly with its new building, is very highly regarded. I think that the real reason why the Government will not have a referendum straight away is that the Labour Party is split on this issue.
	One person who campaigned on the 1979 referendum—indeed, he made his name in that campaign—was, as the noble Lord, Lord Elystan-Morgan, will recall very well, the noble Lord, Lord Kinnock, whose absence from the deliberations on the Government of Wales Bill is very noticeable. There are divisions in the Labour Party about the whole concept of devolution. For those of us who campaigned for many years against the Labour Party in Wales for Welsh devolution, it is interesting to see that so many people here now support it who would not have supported it 20 or 30 years ago. The real problem with the referendum is not that it would fail but that the Labour Party would have trouble with it. For that reason, it was interesting to hear the noble Lord, Lord Kingsland, say that he would prefer Part 4 to come into effect straight away, without a referendum. Well, that is new—I do not believe that I have heard the Conservative Party say that before.

Lord Kingsland: My Lords, it is not new; I said it in Committee, too. It is a much better structured form of devolution than Part 3.

Lord Thomas of Gresford: My Lords, we very much welcome that. I am sure that it was said before, but I must have missed that part of the debate on the Bill. I welcome hearing that and no doubt we can have some collaboration on this point in the future.

Lord Crickhowell: My Lords, I have listened with particular interest to what has just been said by the noble Lord, Lord Thomas of Gresford. I have always understood the Liberal Democrats' position on referendums and, as my noble friend Lord Kingsland said, one can also understand the general objection to referendums. There seems to have been an increase in confidence on the part of the noble Lord, Lord Thomas of Gresford, as the Bill has proceeded. On earlier occasions, he indicated his reluctance to move on to the Part 4 option because of anxiety about his ability to win a referendum. I would like to refer to this act of confidence in a moment, in the context of some observations made during our proceedings by the noble Lord, Lord Elystan-Morgan.
	One of our difficulties with a Bill of this kind is that, although the grouping of amendments has been perfectly proper, it makes it quite difficult to debate in their proper relationship two crucial parts of the Bill—Part 3 and Part 4. We found that in Committee, when we got on to Part 4 only late in the evening, after the dinner break. Today, we will again get on to Part 4 fairly late in the evening. Yet the two parts are intimately related. The noble Lord, Lord Elystan-Morgan, said on Second Reading:
	"I consider Part 4 to be the heart, core and kernel of the Bill".
	He went on to say that Part 3,
	"is a transitory bridge that enables the whole question of Part 4 to be approached".—[Official Report, 22/3/06; cols. 278-9.]
	I have made it perfectly clear that, like my noble friend Lord Kingsland, I intensely dislike Part 3 and infinitely prefer Part 4. The noble Lord, Lord Elystan-Morgan, probably does, too—he would like to go to what he described earlier as Gladstonian home rule.
	I have a certain amount of sympathy with the noble Lord's lack of confidence in his ability to persuade the Welsh electorate that his views are right; I understand perfectly well that, with his experience, he has these doubts. He spoke with considerable force on Second Reading and in Committee about the bruising experience of having led the yes campaign in 1979, when he failed to convince the electorate in a single county in Wales. His parliamentary experience has been pretty bruising, too. He fought four elections as the Plaid Cymru candidate and did not win them. Then, wrapped in the embrace of the Labour Party in the Wilsonian era and warmed by the white heat of the technological revolution and all that kind of thing, he won the Cardigan seat and held it in the 1970 election, when he and I first met. However, there was a shattering blow when in both elections in 1974—when my party was given a bloody nose and the Labour Party was returned to power—he was rejected by the electorate of Cardigan. After the awful blow of losing the referendum, he must have thought that he had found a safe haven in Anglesey when he succeeded to the seat that Cledwyn Hughes—the much missed Lord Cledwyn of Penrhos—had made his own, only to lose it to a young Conservative, Keith Best, who was a Brighton councillor. If I had had such an experience, I might, like the noble Lord, Lord Elystan-Morgan, have withdrawn to another career. He did—

Lord Evans of Temple Guiting: My Lords, I am very sorry to interrupt the noble Lord, Lord Crickhowell, but we are on Report and we must keep to the amendments. Although everything that the noble Lord is telling us about his relationship over the years with the noble Lord, Lord Elystan-Morgan, is interesting, it is not relevant to the amendment that we are discussing.

Lord Crickhowell: My Lords, the amendment relates immediately to the relationship: the noble Lord, Lord Elystan-Morgan, and the Government are putting forward Part 3 as an alternative partly because of the total divide within the Welsh Parliamentary Labour Party on the issue, as the noble Lord, Lord Thomas of Gresford, pointed out. Therefore, this Machiavellian device—"device" is the word used by the noble Lord, Lord Richard—was advanced as a solution. That is what we are debating. As has been accepted in almost every part of the House, it is deeply unsatisfactory. In Committee, I quoted the words of the noble Lord, Lord Thomas of Gresford, when he pointed out on a number of occasions the flaws in Part 3, so I need not do so again. In my view, Part 3 is a Machiavellian and unsatisfactory solution.
	The point that I was going to make and the reason why it is so relevant, following the points that I have made about the views of the noble Lord, Lord Elystan-Morgan, is that, while I sympathise with his position, I firmly and fundamentally believe that the Welsh people should be allowed a vote to decide whether they want to go down the route to home rule. If they do, I will, as I have made clear, wholly support them in doing so. Indeed, my position is like that of my noble friend on the Front Bench, which is that, if we were not being offered a referendum, I would infinitely prefer that solution to the one that we are being offered in Part 3.
	Part 3 is wholly unsatisfactory. It is a dishonest solution. That is why I will be supporting my noble friend on this amendment. One of my reasons for making these points at this stage is the response of the noble Lord, Lord Davies of Coity, to an earlier amendment, in which he tried to argue that because we are against Part 3, we are against devolution. The fact of the matter is that a vote for our amendment is not a vote against devolution; it is a vote in favour of honest devolution. I have faith in the Welsh Assembly and in its decision on when that vote should come. The obstacles that have been erected should not be put in its way. I have total confidence in the decision that will be made when that vote is taken by the Welsh people.

Lord Elystan-Morgan: My Lords, I am greatly flattered by the detailed curriculum vitae relating to me that the noble Lord, Lord Crickhowell, has indulged in, although, with the greatest respect to him and to myself, I think that it was the least substantial part of his address.
	The real issue here is whether a referendum is necessary. The case put with so much lucidity, force and charm by the noble Lord, Lord Kingsland, is that these are essentially revolutionary, fundamental changes of a constitutional nature that need the arbitrament of the Welsh people by way of a referendum. I do not believe that I do any disservice to the case put by the noble Lord, but I challenge his view that these provisions are of a revolutionary nature.
	All that Clause 92 brings about is the capacity of the Welsh Assembly to set in train a process that will create a legislative slot. It is true to say that that legislative slot will be brought about, or not brought about, by an Order in Council. If it is brought about, it will be the product of a long process of joint consultation. Unless there is such understanding between the two bodies—the Cardiff Assembly and the Westminster Parliament—and unless there is trust, integrity and candour, it will all fail. It would be perfectly possible, in theory, to conceive of a situation in which something was sold as being narrow and limited, whereas there was a hidden agenda and all manner of things were being contemplated. If the Welsh Assembly proceeded in that way—and I am utterly confident that it will not—it would deserve to have the whole matter fail and the whole of Part 3 rendered nugatory.
	It depends upon trust, reasonableness and joint consultation of a meaningful and chivalrous nature. Once that is done, and the slot has been identified, there is nothing revolutionary in the idea of a series of decisions by the Welsh Assembly. It is not correct, as the noble Lords, Lord Crickhowell and Lord Kingsland, argued, that all slots in Acts of Parliament are filled only by an Order in Council. There is the power for Ministers to make regulations without bringing the matter to this House. Ministers do not lose sleep over that. If it is right for a Minister as an individual to be able to do that, how much more right is it for an assembly such as the Welsh Assembly—a democratically elected body, operating within strict statutory powers—to be able to do that? In those circumstances, it is not necessary to regard this as revolutionary, and no argument that it is necessary for there to be a referendum can properly be mounted on that.
	The second reason is one that I put forward in Committee. The Conservative Party has set its face, honourably but determinedly, against referendums all along. That was the situation in 1972, when the European Communities Act was passed. Section 2 of that Act provides:
	"All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law and be enforced, allowed and followed accordingly".
	I say nothing for or against the European Common Market and the European Union today. But that was undoubtedly the most massive transfer of sovereign power—I see that the noble Lord, Lord Norton, agrees—that ever occurred in the history of the British people. It was the Conservative Party's honourable decision to put this matter to the arbitrament of the British people by way of referendum. Why should it now, with regard to something so puny and limited, maintain that there has to be a referendum on Wales? The Bible puts it this way: why strain at the gnat and yet swallow the camel? That is exactly what the Conservative Party is doing.

Lord Crickhowell: My Lords, the noble Lord said earlier in our proceedings that, on Part 4, there should be a referendum, and the Government have given us one. We have a choice between accepting Part 3, with all its imperfections, or moving on to Part 4, which I believe is a satisfactory way forward.

Lord Elystan-Morgan: My Lords, the two parts are entirely different: one is a bridge leading to the other. Whereas Part 4 justifies a referendum—which I do not think is wholly necessary—Part 3 certainly does not.

Lord Livsey of Talgarth: My Lords, I shall be extremely brief, and I mean it. I come from a scientific background. Moses has clearly not come down from the mountain with the tablets on this issue. The noble Lord, Lord Elystan-Morgan, is correct that the matter is not of such an order that we need a referendum on it. In fact, in Wales it is largely regarded as a quarter of a loaf; the balances set out in the clauses and the limitations on the Welsh Assembly, which means that it can do very little, are crumbs from the table.
	We believe that the referendum situation is one of controversy. My noble friend pointed out that there are divisions on this in the Labour Party, but all the opinion polls I have seen in the past 12 months are in favour of giving the Welsh Assembly more powers, and primary legislative powers too. It is a point of argument as to whether a referendum would be lost, but this is in Part 4 of the Bill, not Part 3.
	The noble Lord, Lord Kingsland, said that there was a shift in power to the Secretary of State. That is correct. We have put down amendments to reduce and eliminate the Secretary of State's overbearing powers. I believe that we need to move on.

Lord Anderson of Swansea: My Lords, I recall an exchange at a Labour Party conference in the early 1970s. Michael Foot, with his good liberal, west country, home rule background, said that he was in favour of a measure of home rule. The response from Leo Abse was that you might as well talk about a measure of pregnancy, given the possible dynamics of what was happening.
	It is suggested that there be a referendum in respect of Part 3. I accept the argument about the Damascene conversion of the Conservative Party, made by the noble Lord, Lord Elystan-Morgan, but there are practical considerations. If a referendum is to have any validity in its impact, there must be substantial participation. All of us, as politicians, are concerned about the lack of participation, even in Westminster elections. I mentioned earlier the problem we had in the 1997 referendum: in spite of all the major forces in Wales being in favour—with the exception of the Conservative Party—and the Welsh media building up as much of a head of steam as possible, we had 50 per cent participation.
	If the major step forward on primary legislation were to be taken, as in Scotland, there could be substantial participation, but even then it would probably be much lower than 50 per cent. How can one seriously expect a sufficient proportion of the Welsh electorate to participate with the relatively minor, step-by-step elements which would result from Part 3? Participation would be derisory and there would be no substantial lesson to draw from it.
	I have fears, too, about Part 4, but my fears about Part 3 are much greater.

Lord Davies of Oldham: My Lords, we have had a most interesting debate. Not for the first time on this Bill, scarcely an argument has been advanced today that we did not hear in Committee. I am happy to tell the House that the Government's response to the arguments is exactly the same as it was then.
	The amendments are not proposing some minor revision of the Bill; instead, the Opposition are telling the Government, "We know how to do this better. We wish to rewrite the Bill. We will take out Part 3 and implement Part 4". They did not argue for that, of course, at the previous general election. They are prepared to disavow the fact that the Labour Party argued for enhanced powers of devolution at the last election, and won a majority. It also won a majority in Wales against the main opposition party. Yet the Opposition, in their mild revising role for which this House is renowned, are prepared to rewrite the Bill on that rather flimsy basis.
	One noble Lord on the Front Bench says how much he abhors aspects of referendums. Then the noble Lord, Lord Crickhowell, emphasises, equally fluently, how he has suddenly discovered an enormous affection for a referendum, which should take place on Part 4 forthwith. That does not sound like a House in its best revising mood; it sounds like a House bent upon wrecking the crucial part of the Bill.
	Part 3 is designed to ensure that the Assembly has the tools it needs to do the job and to deliver the right policies to the people of Wales. It will give the Assembly control over the detail of legislation while Parliament will decide on a case-by-case basis whether to grant the Assembly new powers, just as it does now. As the noble Lord, Lord Elystan-Morgan, said so accurately, these do not sound like revolutionary powers. This is a mild, evolutionary approach to enhanced powers for the Welsh people; exactly the process we said at the last general election we would pursue.
	It is not as if we are not encouraged by the support of the Welsh people. A recent ICM poll showed that 21 per cent of the Welsh people wanted to keep the status quo, while 39 per cent wanted a more powerful Assembly with full law-making powers. At the two extremes, only 20 per cent wanted to abolish the Assembly, and only 16 per cent were in favour of total independence. It seems yet again that the Government have got the pitch of this Bill just about right in terms of opinion in Wales. We intend to move along those lines with Part 3.
	If the Opposition had come to the Bill addressing the people of Wales with great clarion calls about how they intended to advance the cause of devolution by immediately moving to Part 4, saying, "The Government are too reserved about these issues, and we'll be giving a referendum immediately to the Welsh people on this matter", and were now proposing these amendments against that kind of background, they might have some credibility. When the position adopted merely sets out to wreck a carefully thought-out Bill with careful stages on how it reaches its objectives—objectives laid down by the Government in the presentation to the Welsh people before the last general election—the amendments can only be rejected.

Lord Kingsland: My Lords, in the Government's manifesto before the last election there was not an iota of warning that foreshadowed Part 3, nor was there any discussion of any of the issues or structure contained in it. To the extent that there was any debate, it was solely on the decisions made by the commission of the noble Lord, Lord Richard.
	I say to the noble Lord, Lord Elystan-Morgan, that the only reason we are supporting a devolution of further powers to the Welsh Assembly is that the initial devolution in 1998 was authorised by the referendum. That being so, it seems to us wholly wrong not to adopt exactly the same procedure again.
	My noble friend Lord Crickhowell—

Lord Elystan-Morgan: My Lords, I fail to see how there can be real validity to that argument. The devolution that occurred prior to the setting up of the Welsh Assembly in 1998 was not one piece of devolution but a long series of acts of devolution, amounting to some 600 or 700 individual items, over the period of 1964 to 1998. There have been some instances of piecemeal devolution ever since, and I am sure the noble Lord, Lord Kingsland is not arguing that there should be a referendum on each occasion.

Lord Evans of Temple Guiting: My Lords, I am extremely sorry to have to interrupt the noble Lord again. We are at Report. Members are allowed to speak once, and not again, unless they wish to elicit a point of information from the person they are addressing their remarks to.
	While I am on my feet, may I say we have an enormous amount of work to do on this Bill. At the rate we are going we will be here until about three o'clock in the morning. We must try to stick to the rules of debate at Report, and move on as quickly as we can.

Lord Kingsland: My Lords, I shall resist the temptation to respond to the noble Lord, Lord Elystan-Morgan, and conclude. My noble friend Lord Crickhowell described Part 3 as Machiavellian. Those words have been echoed by the noble Lord, Lord Richard, on the opposing Benches. I said earlier in the day that the formulation of Part 3 was "serpentine". It is certainly devolution by stealth. It is devolution in camouflage; it is devolution by sleight of hand. Above all, as my noble friend Lord Crickhowell, said, it is not honest devolution. I wish to test the opinion of the House.

On Question, Whether the said amendment (No. 38) shall be agreed to?
	Their Lordships divided: Contents, 80; Not-Contents, 144.

Resolved in the negative, and amendment disagreed to accordingly.

Lord Roberts of Conwy: moved Amendment No. 39:
	After Clause 92, insert the following new clause—
	"REFERENDUM ABOUT COMMENCEMENT OF ASSEMBLY MEASURES PROVISIONS
	(1) Her Majesty may by Order in Council cause a referendum to be held throughout Wales about whether the Assembly Measure provisions should come into force.
	(2) If the majority of voters in a referendum held by virtue of subsection (1) vote in favour of the Assembly Measure provisions coming into force, the Assembly Measure provisions are to come into force in accordance with section 92.
	(3) But if they do not, that does not prevent the making of a subsequent Order in Council under subsection (1).
	(4) No recommendation is to be made to Her Majesty in Council to make an Order in Council under subsection (1) unless a draft of the statutory instrument containing the Order in Council has been laid before, and approved by a resolution of, each House of Parliament and the Assembly.
	(5) But subsection (4) is not satisfied unless the resolution of the Assembly is passed on a vote in which the number of Assembly members voting in favour of it is not less than two-thirds of the total number of Assembly seats.
	(6) A draft of a statutory instrument containing an order in Council under subsection (1) may not be laid before either House of Parliament, or the Assembly, until the Secretary of State has undertaken such consultation as he considers appropriate.
	(7) For further provision about referendums held by virtue of subsection (1), see Schedule 6.
	(8) In this Act, "the Assembly Measure provisions" means sections 92 to 101."

Lord Roberts of Conwy: My Lords, at long last we come to a new clause which provides for a referendum to take place before the provisions in Part 3 are activated. There is no need for me to remind your Lordships that we have touched on the subject of a referendum in preceding debates. I explained in Committee the reasoning behind the need for a referendum and the consent of the Welsh electors prior to the commencement of Part 3. It is because there is in essence no difference of principle between the powers granted in Part 3 and the potential consequences over time and those granted in Part 4 which the Government acknowledge require a referendum and fresh consent.
	I argued in Committee that the difference between the effect of the two parts was quantitative rather than qualitative and I am not alone in that. The noble Lord, Lord Richard, described the procedure in Part 3 as,
	"a device to avoid having to come to Westminster to ask for primary powers to be formally devolved".
	He went on to say that,
	"depending on the way in which the Order in Council procedure is used, it could, in effect, be a concealed grant of almost a direct legislative competence down to Cardiff".
	The Father of the House, the right honourable Alan Williams, saw part three as,
	"a form of creeping devolution".—[Official Report, Commons, 9/1/06; col. 53.]
	He saw its true character as did the Delegated Powers and Regulatory Reform Committee in its 17th report. It drew to the attention of the House,
	"the width of the power in Part 3 and that it could, subject to the necessary parliamentary approval, be used to achieve a situation (by filling up the 'fields') which is not really distinguishable from that under Part 4 (for which a referendum is required)".
	That is the true position in a nutshell.
	So the case for a referendum before the implementation of Part 3 follows automatically from its existence in Part 4 as a requirement and the character of Part 3 in itself as a prelude. I regard it as rock solid. It is not surprising that attempts to undermine it in Committee failed miserably. Noble Lords were distracted from the central issue which is the similarity between Parts 3 and 4 and why the first does not require a referendum while the other does. The main distraction was the wording of the question that might be put in the referendum. A number of useful suggestions were made during our debate; in any case, a similar question arises in the context of a Part 4 referendum, so it is not an insoluble problem as far as the Government are concerned.
	The truth is that the Government do not wish for a referendum at this time because they do not think they could win it, as the Secretary of State, Mr Peter Hain, has said more than once. Various ideas have been put forward as to why he said it may have something to do with the current unpopularity of the Government. Other ardent devolutionists have intimated that he is probably right. I am not sure where the Liberal Democrats stand but I know where the noble Lord, Lord Thomas of Gresford, stands, and I am delighted that he stands where he does.
	People are not going to admit to themselves for a moment that they may have failed to provide devolution in a form that delivered the goods to the satisfaction of the Welsh people—far from it. But after the passage of this Bill the Welsh people will be governed by a changed system of devolved government of which they have not approved. We believe that, before the new system kicks in, they should be given the opportunity to approve it. We also believe that with all parties united behind the new proposals, there is a fair chance that the electorate will support them.

Lord Rowlands: My Lords, will the noble Lord confirm that if a referendum was called on Part 3 and the Opposition had their way, they would campaign for a no vote?

Lord Roberts of Conwy: My Lords, I did not say that at all. As my noble friend Lord Crickhowell and others on our side have said, we would campaign for Part 3. The noble Lord knows that there is to be a referendum under Part 4. As Part 3 is barely a step to Part 4, we think that the referendum should be extended to Part 3. The new clause replicates Clause 102 which, with Schedule 6, provides for a referendum prior to the implementation of Part 4. In the event that the new clause was accepted by the Government, Schedule 6 would have to be technically amended, and if the Government are not prepared to do it, I will do it by Third Reading. I beg to move.

Lord Anderson of Swansea: My Lords, I am wary of referendums and of the changed attitude towards them on the part of the Conservative Party. Following my experience of the 1979 and 1997 referendums and of campaigning on the Maastricht referendum in France, I am convinced that the outcome will depend most frequently not on the text but on the context. For example, in 1979 and 1997 it was a question of whether the Government were popular and who was campaigning. As President Mitterrand said, the French always gave an answer to the wrong question in their referendums. I simply repeat that I fear that any referendum on the more limited and, I concede, step-by-step, devolution process would have a very low turnout and would lack credibility.

Lord Livsey of Talgarth: My Lords, I add to what the noble Lord, Lord Anderson, has just said. The amendment calls for a referendum to be held throughout Wales on whether the Assembly Measures provisions should come into force. We disagree with the amendment as it is our party's policy to hold a referendum only if we wish the Assembly to have tax-varying powers.

Lord Davies of Oldham: My Lords, I am grateful to noble Lords who have taken part in this debate, especially the previous two contributions, which have made my case for me. As noble Lords will recognise, I simply do not agree that the provisions on Assembly Measures represent a fundamental change to the devolution settlement. It follows that I reject Amendment No. 39. It would be unprecedented for a referendum to be held on whether Parliament should adopt a new procedure for legislating on certain issues.
	The first question that any intelligent voter would ask would be, what are the issues? You would need to define them. It would be a most eccentric referendum. No one could promise that any matters would be devolved to the Assembly if there were a yes vote. It would remain, as now, a matter for this Parliament to decide. So what would be achieved by the referendum except great confusion in the Welsh electorate's mind? I noticed that the noble Lord, Lord Roberts, brushed that point aside. He said that on the previous occasion we spent rather too much time on the wording of the question. I shall not spend much time making that argument today, but it is obvious that if it is well-nigh impossible to phrase the question, how on earth can you hold a referendum on an issue? It is impossible to phrase the question. That is why every attempt that has been made by those in favour of this unacceptable proposal has floundered on the basis that they were inadequate.
	As my noble friend Lord Anderson said, the step-by-step process would lack credibility in a referendum campaign. The noble Lord, Lord Roberts, committed himself and the Conservative Party, if Part 4 were implemented and a referendum were necessary, to giving strong campaigning support. We note that point, but we do not think that the amendment would do anything other than cause great consternation in Wales and would not lead to an effective deliberation on how devolution should develop.

Lord Roberts of Conwy: My Lords, I am grateful to noble Lords who participated in the debate and who sought to deal with the referendum issue. Like others who have spoken, I have no particular love of referendums but the Government have introduced a referendum in Part 4. I remind the Minister that the question which is to be put before Part 4 is implemented refers to the detail of the Assembly Act provisions and numbers the sections that are to be the subject of a referendum under Part 4, when such a referendum takes place, if ever. The remoteness of that referendum makes one doubt very much whether the Government ever intend to hold it.

Lord Rowlands: My Lords, I apologise because I am slightly confused by the response to my question. This is a referendum about Part 3. If a referendum on Part 3 were established, would the noble Lord campaign for or against?

Lord Roberts of Conwy: My Lords, I would campaign for it, depending on how we had framed the question. But I and my party have already said that there is no question of this party being against devolution. We are for devolution, provided it is done in a proper way that is acceptable to the people of Wales.
	The noble Lord, Lord Anderson, spoke about the dangers of a low turnout. He will remember the 1997 referendum, which led to the Assembly, and he will be aware of the turnout figures then. There were 25 per cent in favour, 25 per cent against and the majority was 0.6 per cent. Nevertheless, the Labour Party has not abandoned faith in referendums as such and is proposing yet another in Part 4. As an opposition, we have no option but to go along with it and propose that if a referendum is required for the implementation of Part 4, then it is required for the implementation of Part 3. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 93 [Legislative competence]:

Lord Kingsland: moved Amendment No. 39A:
	Page 51, line 28, leave out subsection (7).

Lord Kingsland: My Lords, this amendment seeks to remove from the Bill Clause 93(7), which reads:
	"For the purposes of this section the question whether a provision of an Assembly Measure relates to one or more of the matters specified in Part 1 of Schedule 5 is to be determined by reference to the purpose of the provision, having regard . . . to its effect in all the circumstances".
	In Committee, I asked the Minister what the subsection adds to the existing rules on interpretation practised by the High Court. I went on to suggest that the appropriate rule was to look at the meaning of the text. If that was clear, that was that. If the text was ambiguous, the court should go on to make a purposive interpretation. That approach was shared by the noble Lord, Lord Elystan-Morgan, at col. 1150 of Hansard of 6 June 2006.
	I had not intended to return to this matter until I received a letter from the noble Lord, Lord Evans of Temple Guiting, seeking to set out what he regarded as the Government's interpretation of this provision. I would like, if I may, to read out an excerpt. On page two, he states:
	"The Government's view, therefore, is that the safest way of achieving that aim is to include in the Bill a statutory interpretation provision leaving no room for doubt as to how the matter is to be dealt with".
	Your Lordships will recall here that we are talking about the relationship between an Assembly Measure and the field or matter under Schedule 5 which authorises it. The letter continues:
	"To determine whether a provision of an Assembly Measure relates to a matter that is specified in Part 1 of Schedule 5 to the Bill in respect of which the Assembly has legislative competence the courts will be required to consider the purpose of the provision, what it is about, its true nature, its pith and substance".
	I ought to interject to say that I particularly liked that expression. I shall continue to quote:
	"In doing so the courts will have the greatest flexibility to look outside the enacted words . . . because the court will be required to have regard to 'amongst other things' the effect of the provision in 'all the circumstances'".
	I just want to be clear about this. I do not understand how the court could, as it were, cut itself loose from the enacted words to examine,
	"the effect of the provision in 'all the circumstances'".
	Surely all the circumstances that will have to be examined will be suggested by the text of the Bill; and any purposive interpretation must be anchored initially in the words of the Bill. The words outline the scope of the purposive analyses. If the Minister is content to say that that is what the noble Lord, Lord Evans of Temple Guiting, meant, I can happily withdraw my amendment. But if the Minister has some additional thoughts which would take us away from the view that the noble Lord, Lord Elystan-Morgan, and I take, I would like to pursue the matter further. I beg to move.

Lord Davies of Oldham: My Lords, as the House will have been informed, my noble friend Lord Evans wrote a very detailed letter, precise in its content, and including some interesting language, to the noble Lord, Lord Kingsland, which we had hoped assuaged his anxieties and would not give rise to any further representations on this matter. I regret we appear at this stage to have signally failed.
	Let me attempt, therefore, to explain why we would like to see this amendment withdrawn and why Clause 93(7) is fair and accurate. The amendment would remove a provision which is intended, as I think the noble Lord recognised, to resolve any doubts about whether any particular element in an Assembly Measure is within the Assembly's legislative competence—as he said, within the "field". It is important to stress that if this were removed, the Assembly could be severely hampered in its ability to make new and innovative legislation, or legislation which cuts across several different subject matters or tackles problems in new ways. It would prevent the Assembly's ability to create good legislation, and at the same time greatly increase the scope for legal argument about whether something was within the Assembly's powers. The Government's view is that the safest way to avoid legal argument is to include in the Bill a statutory interpretative provision, leaving no room for doubt how the matter is to be dealt with. In reaching that view, the Government, ever mindful of learning from experience, adopted the approach taken in Section 29(3) of the Scotland Act 1998.
	The Government are committed to ensuring that the approach of the courts to the interpretation of the Assembly's legislative competence is as consistent as possible and that the use of the tried-and-tested provision, which as I said we have seen in the Scotland Act, which is now expressed in Clause 93(7), is the safest and most sensible way of achieving that aim. We had hoped in the letter to the noble Lord to make this point as effectively as we could. He is correct that the interpretation would be based on the exact words in the legislation. I want to give him the assurance that there is no attempt to shy away from precisely that commitment. But we have a formula with the Scotland Act which works in these terms and we think this is the safest way of guaranteeing this position with regard to the Assembly.

Lord Kingsland: My Lords, as the Minister expressed his final view on the role that words would play in Clause 93(7), I noticed the noble Lord, Lord Elystan-Morgan, nodding. I am sufficiently reassured by that signal from the Cross Benches to indicate to the Government that I shall be withdrawing this amendment and will not bring it back at Third Reading. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Evans of Temple Guiting: My Lords, I beg to move that further consideration on Report be now adjourned. In moving this Motion, I suggest that the Report stage begin again not before 8.30 pm.

Moved accordingly, and, on Question, Motion agreed to.

Baroness Farrington of Ribbleton: My Lords, I wonder whether, with the leave of the House, I could explain that all speakers in the Unstarred Question must stick strictly to their timing or the Minister will be unable to reply at all.

Disasters: Prevention and Recovery

Lord Dubs: rose to ask Her Majesty's Government whether their new policy outlined in Reducing the Risk of Disasters will provide sufficient resources to enable vulnerable communities to prevent the worst consequences of disasters and to deal effectively with their aftermath.
	My Lords, I welcome the opportunity to introduce this short debate on reducing the risk of disasters. We all know that disasters—hurricanes, flooding, earthquakes and so on—are now sadly more frequent and that some of them are certainly due to climate change. The estimates are that 25 per cent of the world's land mass, or 75 per cent of the population, is at some risk of disaster. The United Nations Development Program estimated that the economic losses associated with disasters have greatly increased from an estimated $75 billion in the 1960s to $660 billion in the 1990s. It also estimated that disasters related to global warming could cost more than $300 billion.
	The cost in terms of loss of life, injury and human misery is much greater than the economic cost, large as that is. Let us not forget the two major disasters of 2005: the Asian tsunami and the Kashmir earthquake, which had far-reaching economic and social consequences. I warmly welcome DfID's policy paper, Reducing the Risk of Disasters: Helping to Achieve Sustainable Poverty Reduction in a Vulnerable World, which was published in March of this year; I also welcome its main underlying assumptions.
	Disasters affect poor countries and poor people the most. As I said, absolute levels of disaster risk are increasing. Disasters pose a significant threat to the development of poor countries. They often set the clock back many years in progress. But even the poorest countries have the ability to make choices that can lower the risk of disasters. That is part of my main theme. Risk reduction should, I believe, be integrated into development and humanitarian policy and planning. Reducing the vulnerability of the poor through building capacity and livelihood increases their resilience to disasters. Of course, some disasters are not natural but man-made—the result of economic action, which can be caused, for example, by chemical spills or deforestation, which has made villages vulnerable to landslides and flooding. The boundary between natural and man-made disasters may often be blurred.
	It is absolutely clear that developing countries experience higher risks. According to UNDP, 24 of the 49 least developed countries face high levels of disaster risk. Let me illustrate that. In 2003 central California was hit by an earthquake measuring 6.5 on the Richter scale. Two people were killed and 40 injured. However, four days later there was an earthquake in Iran with a strength of 6.6. The result was devastating and more than 40,000 people were killed. Both earthquakes were in areas of high-density population. Clearly, there are lessons to be learnt from those differences.
	I remember visiting San Francisco some years ago, where I went to see some friends who live there. They showed me a leaflet that had been issued in San Francisco on disaster preparedness should there be an earthquake. Clearly, San Francisco is one of the world's richest cities and the situation is quite different from that in poor countries. Nevertheless, very clear advice was given about what was to be done, including having batteries for radios to listen to emergency signals and so on. When there are serious disasters, they are often the result of a failure of the critical infrastructure. Countries that are emerging from conflict are often particularly vulnerable.
	Disasters can have long-term adverse consequences. In Honduras five years after Hurricane Mitch, GDP was still 6 per cent below pre-disaster levels, despite high donor pledges. Preparing for disasters is essentially a long-term development activity. The cost-effectiveness of such measures is important but the effect on human lives is even more important. Nevertheless, there are clear economic benefits. In 1998 in the floods in Bangladesh, the value of cattle saved by a four-acre flood shelter exceeded the shelter's construction cost by a factor of 17. The World Bank estimated that in La Paz, Bolivia, disaster prevention and preparedness would cost $2.50 per head whereas the losses from property damage consequent on a disaster were estimated to be many times that, at $8 per head.
	Preparing to avert disasters often has a low visibility and there is little guarantee of tangible short-term outcomes. Understandably, donors were more responsive to calls for emergency aid when they see disasters on television screens. If I were to be critical of the DfID policy document I would simply point out that it does not sufficiently acknowledge the part that children and young people can play in disaster risk reduction. I am grateful to the staff of Plan UK for its help and advice in preparing for this debate.
	I want to give a few examples to show the part that children can play. Some sceptics say, "This is just tokenism", but I do not believe that it is. Children are often highly responsive to being taught about risks and they respond quickly when there is a need to take action. There was a discussion in Thailand after the 2004 tsunami about how the risk of future disasters could be reduced. It is reported that the children said:
	"We have to know where the safe places in our area are. Then when a disaster happens we will know where to go. Children should be shown the interior roads that lead to such places. The main roads may be blocked or damaged.
	"There should be an alarm tower at the beach or in the sea. News should be given periodically. We should have a radio to follow the news. Children can inform everyone if the government makes an announcement.
	"Be prepared with a vehicle for exit, have all important documents, (birth certificate, examination certificates, passport, ration card, bank book, ID card) and necessary items such as food, utensils and common household medicines".
	That is all pretty obvious but the children realised that in future they should be prepared in that way.
	In Sri Lanka, for example, the UNDP and other organisations are working with the National Institute of Education to integrate disaster preparedness into the school curriculum and related textbooks. Plan UK has developed booklets and videos for children to help them cope with future tsunamis or other disasters. I believe that a much clearer and stronger link is needed between DfID's commitments to education and its disaster risk reduction policy and investments. That crossover is very important.
	Another example involves the fact that when there is a disaster school buildings are often easily damaged because they are large. However, if they are made sufficiently secure, they can serve the community as shelters in times of need. The loss of the school building can double the burden on the affected community.
	Another approach is that a comprehensive approach to school safety will embrace design, location, construction materials, construction methods, supervision of construction, inspection and associated building codes as well as maintenance and monitoring of the integrity of the structure.
	Cuba—a poor country—has a high level of preparedness for disasters. In 2001, Cuba experienced the fiercest hurricane in half a century with winds of 225 kilometres an hour. However, only five people died as a result of Hurricane Michelle because the country has a well organised civil defence system. As warnings of the impending hurricane circulated, 700,000 people were evacuated to emergency shelters. Electricity and water supplies were cut to avoid surge contamination and electrocution from fallen power lines, People were advised to store water and clear potentially hazardous debris. These are measures that can be taken. In 1998, Cuba established an institute for physical and spatial planning, which includes responsibility for building codes and risk zoning to reduce vulnerability of households and critical infrastructure. These are all examples of ways in which the policy can work—and the policy is not expensive.
	In conclusion, I should like DfID to incorporate children's efforts and priorities into disaster response and risk reduction work. I appreciate that DfID's policies are essentially sound—I have already praised them. However, other donors should also be encouraged to adopt policies to reduce disaster risk, including the European Union. Disaster risk reduction should be incorporated as an integral part of all relief and reconstruction programmes. Given our very sensible emphasis on poverty reduction strategies, disaster risk reduction should also be fully integrated into poverty strategies. Having said that I welcome DfID's approach and, with a little modification, I should be totally happy.

Lord Dholakia: My Lords, I thank the noble Lord, Lord Dubs, for securing this debate. I commend much of what he said. He and I are regular attendees of Plan UK's parliamentary breakfasts. I commend the work of Plan UK particularly on disaster risk reduction, which is no exception.
	Natural and man-made disasters occur regularly and without warning. Memories are often short, and once the television and newspaper reporting fades away, it is the local community that has to pick up the pieces to rebuild its community structures. We should also never underestimate the role of national and international governments and charities which provide the resources to make this possible. I certainly commend the work of our Government on this. They all ought to be congratulated.
	This debate is, however, about disaster risk reduction. There is a clear recognition that it is simply not enough to deal with the aftermath of disasters. We need to develop a clear focus on the potential impact of disasters before they happen. I have observed the devastation of earthquakes in the Gujarat region of India, and I have seen the devastation in the Kashmir region of the subcontinent. The memory of the tsunami is still with us. At issue is not that there is a foolproof way of predicting disasters, but that the deaths of thousands of people in such regions is unacceptable. That is where the whole international community must develop a strategy.
	The questions we must always pose are: how do we reduce the risk and vulnerability that affects large populations; and do we have a clear strategy on preparing communities for the worst? Of course we galvanise the international community for resources and support, but we need to develop a much more systematic way of dealing with disasters.
	Let us take the tsunami as an example. When I first heard the word "tsunami", I had to look at a number of references to find out what it really meant. I am sure that I was not the only one. I do not think that there was a state of preparedness for such a catastrophe. It was only after the event that nations of that region got together to set up a system to ensure that there was adequate warning in the future. Thousands lost their lives. The impact on children—as the noble Lord, Lord Dubs, rightly pointed out—has been devastating. Thousands of them, too, lost their lives. Plan International is clear that more children could have survived if they had had more information on disaster reduction and response. Research demonstrates that the active involvement of children in disaster risk reduction can mitigate the loss of life and assets resulting from disasters.
	A clear strategy is needed to ensure that these issues are addressed and to incorporate children's efforts and priorities into DfID's current work. The ultimate solution depends on local capacity, and past experiences confirm the importance of involving local communities and authorities. Wider development issues must take into account disaster risk reduction encompassing climate change, poverty planning and poverty reduction strategies. After all, the world's poorest are in the front line and suffer most. Plan International should be congratulated on giving a lead in this matter. I hope that many of its recommendations will be taken into account when such matters are dealt with.

Baroness Howe of Idlicote: My Lords, I too thank the noble Lord, Lord Dubs, for this important debate.
	Increasingly, I am glad to say, the aid and development community is prioritising the need to focus on the potential impact of disasters before they happen, recognising that while earthquakes in Kashmir are inevitable, over 70,000 deaths are not. It is certainly good to learn that DfID is at the forefront of this endeavour, and in particular that it will in future—we hope, certainly—give greater emphasis to children's need to be informed.
	In your Lordships' House, much recent legislation has concerned issues such as education or social care. In these debates, the UN rights of the child have been very much at the forefront of your Lordships' minds. Indeed, noble Lords have tried to get them into almost every Bill that has been debated. I refer especially to children's rights to be consulted and informed and to have their views heard on issues that directly concern them and their future well-being. I cannot think of any issue that requires such an approach more than the issue we are discussing today.
	Children often make up more than one-third of the death toll in disasters. The lives of a similar percentage are severely disrupted by separation or loss of family members or by disruption to education and the breakdown of communities. Like the other noble Lords who have spoken, I have attended a number of Plan gatherings. At the last one, we were told how it has documented countless examples of how the impact of natural hazards has been made much worse by poor governance, corruption and conflict. Above all, almost everywhere, children's specific needs are usually overlooked, because those needs are ignored during planning processes.
	Millions of children have survived natural and man-made disasters, but only to be made homeless, lose loved ones, receive injuries, experience violence, and suffer scarring psychological trauma. The central point is that many more children would survive disasters if they had more information and had learnt skills related to disaster, risk reduction and response. Initiatives involving children in that way not only benefit children themselves but also whole families and the wider community.
	Plan told us that it had been working in El Salvador with children's emergency committees, or brigades, following two devastating earthquakes in 2001. These children's committees perform key functions in their communities: drawing up risk and hazard maps, taking part in mitigation activities such as tree planting and environmental education, and mobilising in response situations. Plan says that the crucial lessons it has learnt in the past five years include the need to integrate a number of themes into disaster risk reduction work. In El Salvador, Plan has recognised that violence, environmental deterioration, children's rights and gender equity are part of the challenge of coping with disasters. As a result, it has provided support for the children's committees to address these issues in an integrated way.
	Above all, there is a need to work at the basic community level, developing planning and implementation structures that can respond to different local contexts within a country and even within a municipality. We must remember that no two communities face the same challenges, as Surestart has shown us.
	It is worth while drawing attention to one or two of the practical lessons that have been learnt. After Hurricane Mitch, consultation with children in El Salvador highlighted the fact that emergency shelters did not allow for division of space between girls and boys and that that created serious child protection risks for girls. Plans were redrawn based on the children's comments. After Hurricane Stan in El Salvador in 2005, Norma, a young woman from El Salvador, confirmed the importance of risk maps. She said:
	"Those risk maps helped us a lot! We knew exactly where the major risks were, what shortcuts we could take when the main road got blocked. We called Plan, the Santa Tecla City Hall, and the school principal to tell them what was happening because we knew they would help us. There were 18 children in our community between 10 and 17 years-old helping out and organising the evacuation".
	In the Asian tsunami of 2005, children in the El Cafetelon temporary shelter in El Salvador suffered from lack of space and security. They could not play, had no normal routine and family members were too stressed and shocked to care for them. They could not move safely around the shelters, and told of cases of attempted abduction and sexual abuse. However, it was possible to start applying the lessons learnt from these past experiences in the aftermath of the Asian tsunami.
	I will end there. However, the issues raised have caused me to look back to World War II. Many of us were evacuated to different parts of the country at that time, when parents and those looking after us were keen to develop our sense of self-preservation. Although that was enormously important, it also helped those of us who went through it to play a greater part in life later on. If we can do that for the children in the poorest parts of the world, I am sure that they will contribute a great deal more.

Lord Tunnicliffe: My Lords, I, too, thank my noble friend Lord Dubs for initiating this debate. The first good thing about it is that it forced me to read the document. I have always been proud of the UK's contribution in aid, but the report has caused me to think about aid in a different way. In the past, I looked upon aid as charity and as something one should give, but the report made me realise that while this generation may be stealing from the future, as all previous generations have done, the rich world is now stealing from the poor world because global warming will affect it much more than us. That has caused me to shift my attitude on aid from charity to the repayment of a debt of honour.
	I shall make three points about the policy paper. First, I shall pick up the theme of children that has already been raised. In a disaster, there will be many deaths. The survivors are likely to be young adults and older children, who are frequently physically the most resilient. Like other noble Lords, I ask the Minister how we can embed resilience in those young people. The answer comes from a workshop I attended that was organised by the Commonwealth Association of Science, Technology and Mathematics Educators. It pointed out that most of the skills needed in the first three days of a disaster before external help can arrive are closely aligned to the teaching of science. They are understanding the environment, water management, nutrition, disease and ecology. It is not fancy words that are needed, but practical science that is directly relevant to surviving the first three days before aid can arrive.
	Building on the concept of aid arriving, what are the Government doing to cover the important topic of disaster reaction planning? The document states that the world is becoming more resilient through better development planning, but I know from my experience in London Underground that it takes years of planning to react to a disaster. Those years of planning are incredibly valuable when a disaster happens. Losses are sharply reduced if there is a plan to work to. We must recognise that many at-risk countries do not have the resources or skills to develop such plans in any depth and, in any case, those plans will involve donor nations bringing resources to bear. What is DfID doing to integrate area-wide disaster plans within the UK Government—that is, involving the MoD and the FCO—and with potential partners? In an emergency, asset-rich partners are needed. Those assets are not so much money, though that is important, but the ability to have ready large volumes of air transport, sea communications, trained volunteers and troops, where necessary. The more that can be pre-planed, the more bang per buck there is on the day that the disaster strikes and the quicker people can be moved in. The more the UK is able to lead that area disaster planning, both within government and with partners, the bigger positive impact we can have.
	My third point comes from years of experience in developing policies. One has a good conference and gets the top team together, but at the end of those discussions, one has to ask what will be different on Monday morning and how those ideas and themes are going to be made tangible. The document partly answers that on page 18, paragraph 61, which sets out the DfID commitments that will flow from the document, but to get things done, commitments have to become specific. It has to be clear where and when they will be applied. There has to be a programme and it has to be reported, so I hope the Minister can give me some idea of what the next layer down from this document will look like, how we will know what is happening and over what timescale things are to happen.
	I believe that the UK has a proud history of aid and that by applying intelligence—in the sense of intellectual capability—to the challenge, we can add even more in future.

Lord Chidgey: My Lords, I, too, congratulate the noble Lord, Lord Dubs, on securing this debate and providing an opportunity for your Lordships' House to examine an issue that by virtue of modern communications—satellite transmission and television—impacts on our daily lives all too frequently. The misfortune, misery and torment of communities, countries and even continents caught up in massive natural and man-made disasters are played out on televisions screens across the UK with depressing regularity. To their credit, the generosity of the response of our communities to disaster appeals is unequalled. The sums donated to the tsunami appeal are a matter of record. But as I stood on the street corner in my small Hampshire town not holding a tin but manning a bucket for Save the Children, that generosity was impressed upon me to great effect. Almost everyone who passed me gave, and almost everyone gave a note. Coins were passed to each child to donate as well. Therefore, in the aftermath of such generosity, it is not unreasonable for those who gave so readily to become uneasy at reports of cases of incompetence and even corruption in the delivery and distribution of disaster relief funds' aid, rescue and reconstruction services. That unease can be faced and those concerns can be addressed by better co-ordination, tighter controls and rigorous auditing, but the underlying issue is surely to address the preparedness to face the frequency, scale and devastation of the disasters.
	In the United Kingdom, global relief aid charities and NGOs, such as Plan International, Save the Children and so on, have become increasingly concerned about raising awareness of the need for disaster mitigation and preparedness. DfID, to its great credit, has increased levels of funding with more than £14 million committed to disaster risk reduction worldwide in the past 12 months. This is, perhaps unavoidably, a drop in the ocean. Nevertheless, it is important that DfID meets its commitment to,
	"increase the funding . . . to international efforts to reduce disaster risk; and . . . allocate 10 per cent of the funding provided by DFID in response to each natural disaster to prepare for and mitigate the impact of future disasters".
	It is now almost 18 months since representatives of 168 countries met in Japan and signed up to the Hyogo Framework for Action, which sets out commitments to ensure that disaster risk reduction is at the heart of government policy. World leaders made commitments on disaster reduction at the 2005 G8 summit stating,
	"disasters . . . have particularly grave implications for the poor and for hard-won development gains. In order to reduce disaster risk, we will work together with the UN, World Bank, other multi-development banks and developing countries to help them tackle disaster risk reduction more effectively. We will also consider how to improve the profile of disaster risk reduction in our development and other ministries".
	However, it is the case that most donors are still more responsive to emergences created by disasters than to supporting disaster risk reduction programmes. Nevertheless, as other noble Lords have mentioned, there is great scope for disaster risk reduction to be integrated into poverty reduction strategy papers as a platform for dialogue on supporting specific national disaster reduction efforts. A number of child-centred international charities, including Plan International and Save the Children, are leading by example with their field projects. Over the years, I have seen for myself the impact achieved in rural communities throughout Africa by working with the grain with village leaders and state agencies. A key aspect of the strategy must be an awareness of the connectivity of disasters and their risk reduction with children. Tens of thousands of children lost their lives in the Asian tsunami. Many would have survived with more information about disaster reduction and response. While around 80,000 people are killed by disasters each year, Plan International estimates that those disasters severely disrupt the lives of some 77 million children. In the Hyogo Framework for Action, signatories are committed to establishing national platforms for disaster risk reduction, but many countries, including the United Kingdom, have been spotlighted for making slow progress.
	On the positive side, in Africa, state agencies in Uganda have already integrated disaster risk reduction into their own poverty reduction strategy paper and have formed a national secretariat to co-ordinate those activities. In Kenya, a similar platform has developed a policy for fire management and arid lands development, and has secured a $30 million budget from government to support drought-mitigation activities. Examples such as these demonstrate how much more can be done within the right framework and with the right support.
	In summary, therefore, the key issues are surely to urge our own Government to give their strongest support: first, for national plans that build on local capacity to prepare for and respond to disasters; secondly, for the inclusion of disaster risk reduction in national poverty reduction strategy papers; and, most importantly, for the inclusion of children's needs and capacities in these national plans. I hope for confirmation from the Government tonight that they are committed to providing this greater support for more developing-country Governments in developing their comprehensive national plans.

Lord Hunt of Chesterton: My Lords, with your permission, I shall speak in the gap. I apologise for not putting my name down earlier.
	I welcome the DfID report, which, for the first time, shows that developing countries dealing with natural disasters is as important as the wider question of tackling climate change. I declare an interest as a member of the UK Advisory Committee for Natural Disaster Reduction. Technical progress is clearly being made through the better prediction of floods, hurricanes, droughts and even earthquakes, but, as the noble Lord, Lord Dubs, said, the warnings need to be disseminated more effectively in developing countries. We should also recognise that India now probably has a more effective system than we have in the UK, thanks to the electronics of Bangalore. The Kobe conference in 2004 was important, as the noble Lord, Lord Chidgey, commented, for showing how an international systems approach is essential. It was a real step forward from the more timid conclusions drawn at the Yokohama conference that I attended in 1994.
	The main point I want to make in my brief comments is that insurance is one of the most effective methods for preparing for disasters and for ensuring that relief is paid out very rapidly afterwards. The New York Times recently publicised how US aid agencies are insuring against drought so that, when a drought occurs, the aid is instantly available, unlike in the past when aid has been paid out very slowly, sometimes after many years. This policy is stimulating research and practical action into the prevention and reduction of disasters, and I hope that the Government will encourage this approach more vigorously than they have done hitherto.

Baroness Northover: My Lords, I, too, thank the noble Lord, Lord Dubs, for securing the debate, and all noble Lords who have taken part in it. There are three stages to this: the prevention of disasters, immediate disaster relief, and reconstruction afterwards. Given such limited time, I shall concentrate on prevention, where surely we can have the most effect. Some may think that disasters have simply always been with us, but in fact the effect of various natural events has become far more extreme in the past century or so. Climate change is a key factor, as others have said. Developing countries are especially vulnerable, as others have also commented. Famine and drought are increasing. The problems in Sudan, for example, have been exacerbated by the expansion of the desert into lands which the Janjaweed have left to prey on others.
	The growth of cities is critical in increasing the scale of disasters. Stephen Sparks from the University of Bristol, and Herbert Huppert from Cambridge, reporting on a recent Royal Society meeting, part of which I attended, said:
	"Mankind is becoming ever more susceptible to natural disasters, largely as a consequence of population growth and globalisation. It is likely, in the future, we will experience several disasters a year that kill more than 10,000 people. A calamity with a million casualties is just a matter of time".
	Cities are rapidly expanding in very dangerous locations with extremely poor infrastructures. Cambridge Professor of Seismology, James Jackson, who happens to be a cousin of mine, has researched the fact that earthquakes seem to target settlements such as Bam in Iran. He points out that water emerges at fault lines, which is why populations settle there. Populations expand, poor buildings are put up, and earthquakes can devastate when they hit. It is the so-called "megacities" that sit on these fault lines that cause the scientists such concern. Tehran, now with more than 12 million people, is built on one of these fault lines. It could very well suffer a massive and devastating earthquake, and its newest, most modern hospital has been built on a raised area that is clearly a fault line. Who approved where it should be? Why was known science not brought to bear? Should an earthquake strike, that hospital may be one of the first buildings to be destroyed.
	There are actions that we can take to mitigate disasters. Lives would have been saved had there been an early-warning system in the Indian Ocean. We know, as we have heard, that earthquakes in California have become in recent years economic problems, not human catastrophes. Education has, as others have said, helped to save lives, especially of children. Take the effect of the hurricanes that hit the Caribbean in 2004—the noble Lord, Lord Dubs, referred to the one that hit in 2001. Haiti, with no civil protection office, no warnings and no evacuations, lost 3,000 people when Hurricane Jeanne hit. Cuba, hit by Hurricane Charley, saw only four deaths, after timely warnings and mass evacuations.
	We know that these warnings can be very low-tech, as in Bangladesh, which has 32,000 trained volunteers organised into groups of 12 in 3,500 villages. Deaths from cyclones have significantly declined. In Japan, every owner of every crane, so my cousin tells me, has to register where they are so that they can be immediately deployed in the event of an earthquake. There is a very long way to go before we reach that point in areas across the Middle East, around the Himalayan rim and down into China, where large populations are now living on fault lines where earthquakes may well strike in the next few years.
	Surely we can do much more to harness the knowledge that already exists. It was suggested at the Royal Society meeting that 5 per cent of the amount spent on disaster relief should be put into a fund for disaster prevention. Clearly national and international action needs to be taken, and knowledge needs to be transferred and to be acted on. I look forward to hearing what the Minister has to say about how the Government plan to take these issues forward. Will they promote the 5 per cent proposal? Will they support scientists coming from relevant countries to study here? What action will they take internationally to help the poorest countries?
	Not all disasters strike out of the blue, and we would surely be negligent if we did not apply what we already know, so in the interests of those whose lives are even now in danger, surely prevention should come far higher on our agenda.

Baroness Rawlings: My Lords, I, too, thank the noble Lord, Lord Dubs, for giving us the opportunity to debate this Question. The DfID report highlights an area of international aid and development that has recently been widely reported but that may well now fall into its customary obscurity.
	Recent years have seen a tragic loss of life and enormous damage to infrastructure and to economies caused by natural disasters. The Asian tsunami at the end of 2004 showed us just how enormous the impact of a natural disaster can be, and how long the effects of one can last throughout the region. Even before 2004, the International Federation of Red Cross and Red Crescent Societies 1998 report said that natural disasters that year created more refugees than did armed conflicts.
	I hope that the debate will help to keep the lessons learnt from recent years to the forefront of our minds. The risk of natural disasters will not lessen as the memories of the Pakistan earthquake or Hurricane Katrina fade. Many noble Lords have stressed how the recent disasters have also made clear the enormously different impacts on rich and poor countries alike. In one, a natural disaster may cause significant damage to property and infrastructure, but little loss of life. In the other, a natural disaster will cause enormous loss of life and long-term damage or even obliteration of the regional economy and infrastructure. That contrast highlights just how much can be done to protect communities in future; not just by improving the response to a disaster, but also in prevention.
	The public response to the Asian tsunami was tremendous, as has been appreciated many times in this House. However, public fundraising campaigns cannot be relied on for a long-term solution. The recent famines in Africa, which many have pointed out could have been prevented by more timely aid at an earlier stage, show how less dramatic but equally tragic events do not gain enough media coverage or public support until it is too late.
	I am glad to see that the DFID report acknowledges the importance of making certain that preventative strategies are given their due priority by donor countries and organisations, and the national governments of the countries at risk, as stressed by the noble Baroness, Lady Northover. That policy, as is emphasised in the report, must not be seen as bleeding limited resources away from crucial short-term projects for a distant and speculative gain. Actions taken to prevent deforestation and to improve river drainage and water courses, or to enforce building standards, will all bring considerable short-term benefits as well as lowering the likelihood of a future natural disaster.
	We on these benches are broadly in agreement with the report, but there is much in it that we feel has not been addressed. The policy objectives are very clear on the need to support the international system which can provide long-term, co-ordinated aid. But what steps are the Government taking to make certain that other countries are doing the same? On 12 June, Hilary Benn proudly announced the sums that the UK had contributed to the UN's Central Emergency Response Fund, but the UK cannot give all that is needed; we must encourage other countries to increase their efforts too.
	The DfID report also highlights the need to build institutional structures within the disaster-prone countries. It says that it,
	"will focus on collaborating with developing country governments".
	Yet we know from experience how ineffective those governments can be in setting up such ambitious institutions. How can the noble Baroness assure us that funds, whether bilateral or channelled through the United Nations or other international organisations, will not be lost through corruption?
	The report lays out the intention for DfID to use its regional divisions and country offices. I am glad that the importance of local knowledge and awareness of local conditions is appreciated, but can the noble Baroness explain how this policy is to be implemented in the face of closure of many overseas offices? How are DfID directors expected to work effectively with the recipient country if there is no FCO office remaining in the country? We have heard many of the policies laid out in this report in the 1997 White Paper. I can hope only that the next nine years see more progress in reducing the risk of natural disasters than the past nine years have done. We need a consistent and thorough approach to improving systems in the developing world and we hope that this Government will now be able to deliver.

Baroness Royall of Blaisdon: My Lords, I, too, congratulate my noble friend Lord Dubs on securing this debate and I thank all noble Lords who have taken part. Development organisations, including DfID, have underinvested in disaster risk reduction, or DRR. While continuing to respond generously to disasters, the Government recognise in their new policy paper that we must invest more in prevention. This is, however, long-term and low-profile work, which deserves much greater attention. I therefore warmly welcome this debate as an opportunity to raise its profile.
	As noble Lords have pointed out so graphically, the past two years have seen some of the worst natural disasters in living memory: the Asian tsunami; droughts in Africa; floods in eastern Europe; devastating hurricanes in the Caribbean and the US; and, most recently, the Pakistan and Java earthquakes. These disasters have claimed hundreds of thousands of lives, ruined millions of livelihoods and caused billions of pounds' worth of damage.
	The number and frequency of disasters are growing. According to Munich Re, one of the world's largest reinsurers, economic losses from disasters in the 1990s totalled more than US$608 billion. That is greater than losses over the four previous decades combined. Climate change is bringing an increase in the frequency and severity of floods, storms and droughts.
	In addition, the resulting social and human costs are immense, with death, hunger and displaced persons, and with communities and infrastructure destroyed. We know that the poorest people are worst affected and suffer the most when disasters occur. We recognise that raising awareness of the risks is vital. That is why we are supporting the work of ActionAid, Plan UK and the International Strategy for Disaster Reduction to educate children about such risks. Many noble Lords have rightly emphasised the role of children. I acknowledge that perhaps we did not in the policy document talk enough about educating children and young people about the risks that they face from natural hazards, which is one of the best means of strengthening communities' resilience to disasters. That is exactly what ActionAid and Plan UK, with our support, are doing. I congratulate them on their excellent work. Of course, as noble Lords have pointed out, we must listen to and learn from children. That is the best way forward.
	I hope that with the Education for All initiative, which was recently launched by my right honourable friends the Chancellor and the Secretary of State for International Development, together with the President of Mozambique and President Mandela, there will perhaps be an opportunity to ensure that DRR is included in the curriculum, where appropriate, in developing countries. As the noble Lord, Lord Dholakia, said, children in the wider communities must be familiar with the system and how to respond. We are supporting work in the Indian Ocean region to ensure that communities know not only about the tsunami early warning system, but how to use it to their benefit.
	The capacity to cope with and reduce risk is much more limited in poor countries. You only have to compare the two earthquakes mentioned by my noble friend Lord Dubs to understand that. Poor countries not only suffer great economic and social loss, but their capacity to reduce risk is also limited. Disasters affect economic development in poor countries and slow down progress towards the millennium development goals. For example, education becomes more difficult. Women and girls have increased responsibilities and, of course, children are often at most risk in floods and drought. The number of people living below the poverty line in Aceh increased from 30 per cent to 50 per cent following the 2004 tsunami.
	The noble Baroness, Lady Rawlings, is right that the public response to the tsunami was extraordinary. But, of course, the international community needs to learn the lessons from the way in which the disaster caused by the tsunami was handled. We look forward to a report by the Tsunami Evaluation Commission, which will be launched in London on 14 July. We will look carefully at its recommendations. Before I leave the issue of communities, I should respond to the noble Baroness, Lady Howe. She is absolutely right that no two communities are alike. We have to enable communities to respond in the way that best meets their needs.
	It is clear that we need a renewed effort on DRR. In his speech on humanitarian reform in December 2004, my right honourable friend Hilary Benn committed DfID to giving a higher priority to DRR, which we have done. Following his speech, a tsunami devastated large swathes of the Indian Ocean region. Shortly after the tsunami, the world met in Kobe at the World Conference on Disaster Reduction to agree the way forward on DRR over the next decade. These events reinforced the need for this step change in DfID's DRR work. We are encouraging the international community to follow suit. As the noble Lord, Lord Chidgey, said, that is the real challenge, but I am very glad that he pointed out that there was mention of risk in the G8 conclusions last year.
	As part of the step change, DfID launched its new DRR policy on 30 March. This policy, which is fully in line with the Hyogo framework for action, has three overarching objectives. The first is to promote better integration of DRR into development programmes. We have recently agreed a £4 million programme with the Word Bank to include DRR measures in the poverty reduction strategies of several disaster-prone countries in Africa, Asia and central America. DfID is also planning to train its staff to implement DRR in its own programmes. To answer to my noble friend Lord Tunnicliffe, we are supporting comprehensive disaster management planning in a range of countries, including Bangladesh. Of course, we also understand the need for the MoD and the FCO to agree the way forward so that we are ready to respond to disasters when they, sadly, happen. We are also working with the UN, the EU and other donors to consider how disaster risk can be more effectively incorporated into national level planning processes.
	Secondly, we are working to improve the international DRR system. The Secretary of State for International Development called on the United Nations to consider whether its institutional set-up was adequate for the scale of the challenge. The UK has worked closely with the UN to reform the international strategy for disaster reduction, and we have recently contributed £3 million to this. Thirdly, we are working to reduce the vulnerability of poor communities by building their resilience to hazards. Over the past year or so, we have invested around £16 million in the Red Cross, ActionAid, Christian Aid and other NGOs to support community-level DRR work in Africa and Asia. We are also committed to allocating 10 per cent of the funding provided by DfID in response to each natural disaster to prepare for and mitigate the impact of future disasters where that can be done effectively. We will spend £7.5 million on DRR work in the tsunami-affected region and around £6 million in Pakistan following the earthquake.
	The noble Baroness, Lady Rawlings, asked how we can ensure that funds are not lost through corruption. We are working on governance issues, and we are building the administrative capacity and the other capacity needed in developing countries with some of this money. Just last week, my right honourable friend the Prime Minister announced that my right honourable friend Hilary Benn would be the Minister responsible for addressing corruption across the Government, and I am sure that he will have a large role to play in ensuring that these moneys are well spent in a properly accountable way.
	The noble Baroness, Lady Northover, and other noble Lords have rightly raised the link between the increasing number of disasters and climate change, since the vast majority of the world's disasters are climate-related. Clearly, climate change and disaster reduction communities must work more closely together to reduce the vulnerability of people to those hazards. The Government are contributing to a range of international environment and climate change initiatives, including a pledge of £140 million to the global environment facility, as a signal of our commitment to addressing global environmental problems.
	Naturally, we recognise that we must invest more in preventing slow-onset disasters such as drought, which increase the numbers of destitute and therefore the need for relief over the years. DfID is therefore increasing its support for timely, adequate and guaranteed small payments of cash and/or food, fertiliser and seeds on a regular and long-term basis to the neediest. Those safety nets help to protect people from selling their assets in crisis and build resilience against shocks. In Ethiopia, for example, we have given £52 million of our £70 million commitment to support 8.24 million people. We are working with African Governments to scale up this approach in Ethiopia, Kenya, Malawi, Zambia and Lesotho. Providing additional financial resource is important, but much can be done to reduce disaster risk without extra money. Reducing disaster risk will in part be achieved by ensuring that our ongoing development and humanitarian work and that of our partners effectively takes account of risk—for example, through ensuring that infrastructure is properly designed to withstand possible climatic and seismic shocks.
	There is also an important role for the private sector. In developed countries, the private sector is at the heart of risk management, but that is not the case in developing countries. There needs to be greater engagement with the private sector to promote the more active engagement in emerging markets and poor communities. Naturally, insurance companies have a very large role to play, as mentioned by my noble friend Lord Hunt of Chesterton. We have to build on the examples provided by microinsurance and microcredit institutions. Their potential applications to risk reduction should be explored. That could include encouraging the private sector to incorporate disaster risk issues in their CSR programmes. I am pleased to report that companies such as Cable & Wireless are talking to DfID about how best to get involved.
	We know that an ounce of prevention is worth a pound of cure. What will we be doing on Monday morning? One thing that we will be doing is announcing the funding of a programme as part of the conflict and humanitarian fund to look at the cost benefit analysis of DRR interventions in Pakistan, India and Nepal. We really are putting our money where our mouth is. We are absolutely committed to doing more to reducing the impact of disasters, particularly in the poorest countries. We are providing substantial resources, but we have a challenge in galvanising and sustaining sufficient resources from the wider international community. That will require continued attention and advocacy both from Ministers and from civil society groups. The Government cannot solve the disaster risk reduction funding issue on their own. We must continue to give high priority in making the case for disaster reduction, and we should work to strengthen the commitment of partner country authorities to recognise the importance of disaster reduction and give it due priority in their policies. We will continue to do all that we can to ensure that that happens.

Baroness Farrington of Ribbleton: My Lords, I beg to move that the House do now adjourn during pleasure until 8.30 pm.

Moved accordingly and, on Question, Motion agreed to.
	[The Sitting was suspended from 8.26 to 8.30 pm.]

Government of Wales Bill

Further consideration of amendments on Report resumed on Clause 93.
	[Amendment No. 40 not moved.]
	Clause 94 [Legislative competence: supplementary]:

Lord Kingsland: moved Amendment No. 41:
	Page 51, line 36, leave out paragraph (b).

Lord Kingsland: My Lords, in moving Amendment No. 41 I shall speak also to Amendment No. 42. These amendments were probing amendments in Committee and have been tabled again in the light of a further letter I have received from the Minister. If I may say so, it is a model of clarity and perspicacity. I wish only to respond to the content in a wholly laudatory manner and add a further thought I have had in its slipstream.
	The subsections of Clause 94 to which I wish to refer deal with the circumstances in which Part 1 of Schedule 5 can be amended. It may be helpful if I draw the attention of your Lordships' House to the relevant parts. Clause 94(1) states:
	"Her Majesty may by Order in Council . . .
	(b) amend that Part to add a new field or to vary or remove any field".
	Subsection (2) goes on to state:
	"An Order in Council under this section does not have effect to amend Part 1 of Schedule 5 by adding a field if, at the time when the amendment comes into force, no functions in the field are exercisable by the Welsh Ministers, the First Minister or the Counsel General".
	The situation appears to be that with the separation of the Executive from the legislature in Wales, Ministers who represent the Executive inherit all the functions that the Assembly performs. Part 1 of Schedule 5 reflects the legislative consequences of that. In other words, the fields and the matters under the fields in Part 1 reflect the precise nature of the functions as they now are. Clause 94(2) states, in the context of clause 94(1), that new fields and new matters can be added to Part 1 of Schedule 5 provided that they reflect new executive functions and thus new ministerial functions. Those functions are devolved on Ministers earlier in the Bill under Clause 58. My interest in this matter has therefore shifted to Clause 58 itself.
	We have spent a great deal of time both in another place and in your Lordships' House focusing on exactly what procedures we need to develop in both Houses to properly scrutinise the devolution of legislative power to the Welsh Assembly. It appears that if we are to add to the scope of devolution, we can do so only if additional powers and functions are granted to Welsh Ministers under Clause 58. So far we have paid no attention to the system of devolution in that clause.
	There, the decision to devolve is also controlled by an Order in Council procedure; but, so far as I am aware, no Government Minister, either in another place or in your Lordships' House, has suggested for Clause 58 a pre-legislative procedure as has been suggested for Clause 94. I should be most grateful if the Minister would be kind enough to indicate whether he would be sympathetic to Parliament developing a pre-legislative procedure for Clause 58 similar to that suggested by Mr Ainger in another place for Clause 94. I beg to move.

Lord Evans of Temple Guiting: My Lords, there is nothing to prevent a draft Order in Council under Clause 94 being considered immediately after a draft Order in Council under Clause 58, provided that the latter meant that Welsh Ministers, the First Minister or Counsel General could exercise the function in the new field. The draft Order in Council under Clause 94 could add the field to Schedule 5 and the Assembly can seek to add a matter or additional matters relating to that field. There is no pre-legislative scrutiny of orders under Section 22 of the Government of Wales Act and Clause 58 is the equivalent of that section. I hope that this explanation satisfies the noble Lord.

Lord Kingsland: My Lords, I am most grateful to the noble Lord for his response. I can see the logic, as far as he is concerned, of the historical precedent for not having a pre-legislative procedure for Clause 58. Given, however, the crucial role it plays in determining whether Clause 94(2) applies, my submission to him is that the Government ought to think again.
	In any case, it is, I suppose, thinking aloud, open to either your Lordships' House or another place or both to develop their own pre-legislative procedure in these matters so that Members of both Houses are better informed when it comes to dealing with the orders that will be tabled in both Houses under Clause 58. In those circumstances, it would probably be not only somewhat unfair but also unnecessary for me to probe this matter further at this stage. Therefore, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendment No. 42 not moved.]

Lord Rowlands: moved Amendment No. 43:
	Page 51, line 41, at end insert—
	"( ) An Order in Council under this section shall include the principal reasons for seeking the enhancement of legislative competence."

Lord Rowlands: My Lords, I have no wish to rehearse or readdress the debate that we had in Committee on this issue but, perhaps drawing upon that debate and on the debate on 24 January in another place, I want to see whether we can come to a conclusion about the nature and contents of Orders in Council. When my noble friend replies, perhaps we could have the equivalent of a definitive statement on what he sees as the essential elements of the contents of an Order in Council.
	I venture, therefore, to offer two or three thoughts about such contents as a contribution to his conclusions. It seems to me that the first conclusion we can draw from the discussions that we had in Committee, and certainly from those in the other place on 24 January, is that any Order in Council can be brought forward only in a particular policy context. In other words, it cannot be brought forward in a kind of vacuum. That has been emphasised over and over again by my noble friend in this House and certainly by Mr Nick Ainger in the other place. In fact, it appears that before we ever see an Order in Council there is going to be a very elaborate pre-Order in Council process. The Parliamentary Secretary described it on 24 January: there will be memoranda explaining what the measures will cover; the reasons behind them; the policy developed and so on.
	Then there will be, as my noble friend emphasised in Committee, a thorough pre-legislative scrutiny. Again, the Parliamentary Secretary said that the proposed draft orders can be amended, which would mean that more weight would be given to pre-legislative scrutiny than usual—possibly because orders are ultimately not amendable. I find it very comforting and reassuring that there will be a considerable run-in to an Order in Council coming before us in draft form and, subsequently, in its final form.
	However, none of those statements quite answers the question I posed in Committee—that is, what will be included in the Order in Council as presented to us? The only way in which we can answer that so far as I can see now is to fall back upon the two mock draft orders that the Government helpfully offered us as examples of the shape that an Order in Council will take. Looking at the two mock draft orders—the transport and public ombudsman orders—we notice, first, that there has to be a specific identification of the field within which enhanced legislative competence is being sought. For example, the transport order will obviously identify that it is field 10 under which the competence is being sought. Then, under that, there is "The Matter"; and under "The Matter" there is, possibly, "Provision". There could be more than one provision or a provision and a series of subsections. I shall come to the transport order in a minute.
	I assume from these two mock draft orders that the principal purpose or purposes for which the enhanced competence is being sought—and the reasons why—will be included in the Order in Council. That is one of the assurances that I would like my noble friend to give me, because that seems to be the only conclusion we can draw from the two mock draft orders we have received. This is a fundamental point as it demonstrates that these are not open-ended orders in many respects.
	On the draft transport order, in Committee I raised the question—my noble friend did not deal with it, but I do not blame him because he was replying to a fractured debate of one kind or another—why this order did not include one of the most eye-catching aspects of the original transport Bill: the power which the Assembly was seeking to fund and support or subsidise air services and airports. I hope my noble friend will say why that was excluded, especially because on rereading the draft transport order, he may have come to the same conclusion to which I have come, that the order would not have given the Assembly such competence. Interestingly, the last part of the provision in relation to it refers to financial support for such bodies by levy or precepts. The reference to such bodies is in paragraph (b), and all those are about local authority transport functions. Therefore, I suspect that as drafted, and by leaving out the specific reference to the support for air services, it may be that the Assembly would not have such competence.
	All that I wish to do is to emphasise the importance of the essential elements of the Order in Council so that we know what we are voting for. The kind of assurance that I seek is that we do not have a draft order that reads something like this:
	"Field 16: support for sport and recreation",
	or,
	"provisions in relation to support",
	or,
	"Field 5: provisions in relation to nursery education".
	We expect, and I hope that my noble friend will give us the assurance, that such minimally worded orders with such huge potential for expansion of Assembly legislative competence will not be considered or come to this House or the other place. I beg to move.

Lord Thomas of Gresford: My Lords, the noble Lord, Lord Rowlands, has come out with a very attractive argument for the disclosure of the purpose of a particular Order in Council. However, one weakness of this mechanism is that once the field has been established and the details have been given, anything can happen into the future. It is not the provision that the Assembly has in mind that will be covered.
	To take for example the noble Lord's illustration, if the Order in Council were to provide nursery education, the Assembly might very well bring in a measure that would deal with the nursery education for that particular moment and then two years later could bring in a measure to reverse the first measure. Another Government in the Welsh Assembly could reverse what happened in the first measure. Once the field is established, it is established for all time. That is one of the great problems about the mechanism in Part 3. It is a very good reason for moving as quickly as we can to Part 4, where we can get into proper primary legislative powers. At the moment, the way in which Part 3 will operate could conceal reverses of policy as well as the ground of policy itself.

Lord Rowlands: My Lords, the noble Lord is making an important point and did so in Committee. As I understand the matter—and perhaps the Minister could confirm this—even though a subsequent measure can be brought once the field of competence has been granted, it would have to stay within the terms of the original Order in Council. Through the noble Lord, I ask the Minister to reply to that.

Lord Evans of Temple Guiting: My Lords, I am grateful to my noble friend Lord Rowlands for tabling Amendment No. 43, which gives us the opportunity to discuss some of the very important issues that he raised in Committee. I hope that I shall be able to reassure him and the noble Lord, Lord Thomas of Gresford.
	It may be helpful if I begin by restating the key differences between Part 3, dealing with Assembly measures, and Part 4, which concerns primary legislative powers for the Assembly, without reigniting some of the discussions that we had before the dinner break.
	Part 1 of Schedule 5 sets out the framework for the legislative competence of the Assembly under Part 3. It lists fields, which are broad policy areas corresponding to the existing responsibilities of the Assembly. The fields themselves do not confer any legislative competence on the Assembly; they merely indicate the areas in which it may acquire legislative competence. What is more, under Part 3 of the Bill, the Assembly will not be able to gain legislative competence over a whole field at a time. It could not, for example, bid for legislative competence over "Local Government" or "Housing". Instead, the Assembly will have to identify a specific matter on which it wishes to seek legislative competence.
	A "matter" is a defined piece of legislative competence. The only matters that are currently inserted in Schedule 5 are under field 13, "National Assembly for Wales"; matter 13.1 for example is the,
	"creation of, and conferral of functions on, an office or body for and in connection with investigating complaints about the conduct of Assembly Members and reporting on the outcome of such investigations to the Assembly".
	The mechanism in Part 3 for adding a matter to Part 1 of Schedule 5 is an Order in Council. Parliament will consider each Order in Council and so decide on a case-by-case basis whether the Assembly should be granted the particular legislative competence being sought. The scope of the legislative competence in each case will be defined by the wording of the matter. Pre-legislative scrutiny of a proposed Order in Council will provide Parliament and the Assembly with the opportunity to examine the scope of the legislative competence being sought and to propose changes to the Order in Council which would either clarify or alter it.
	I have previously provided to the House, as we heard from my noble friend, a mock Order in Council covering provisions under the Transport (Wales) Act 2006. My noble friend commented, and repeated this evening, that it was not clear from the wording of the "matter" in the mock Order in Council that it would enable the Assembly to provide financial assistance to the providers of air services. It may help if I clarify that the mock Order in Council covers only local authority transport functions which correspond to Sections 1 to 6 of the Transport (Wales) Act 2006. It would of course be possible to include the provision of financial assistance to providers of air services as a matter within the order. Indeed, that is precisely the sort of issue that should be considered from the earliest stages, when the proposed Order in Council is being worked up, through to the finalisation of the draft Order in Council to be laid before the Assembly and Parliament.
	These proposals for Orders in Council will be prepared by the Assembly on the basis of an analysis of what it wants to be able to do and that it cannot do under existing legislation and within its existing powers. That will be the basis on which the "matter", which will define the scope of the legislative competence, will be drafted.
	When seeking an Order in Council, the Assembly will set out what it wants legislative competence for. The "matter" in the Order in Council will be drafted accordingly in consultation with the Secretary of State, who will ensure that pre-legislative scrutiny of a proposed Order is informed by that explanation. It will then be for Parliament to judge both whether it is appropriate for the Assembly to have that competence and whether it is correctly defined to cover what provision the Assembly wishes to be able to make by an Assembly measure. Clearly Parliament may ask for as much information as it thinks necessary during pre-legislative scrutiny of any proposed Order in Council.
	To those who have expressed concerns that the new Order in Council procedure might be used to give the Assembly primary powers through a back door, I would ask them to reflect on this clear distinction between Parts 3 and 4. I would draw their attention to the words of the Secretary of State for Wales, who said when opening the Second Reading debate on this Bill in another place:
	"If the Assembly ever attempted to acquire such powers by the back door, I as Secretary of State would block it, so would this House and so would the Lords. It is inconceivable because there is a triple lock to prevent it. Parliament remains in charge".—[Official Report, Commons, 9/1/06; col. 39.]
	Finally, turning to the specific wording of my noble friend's amendment, I am afraid that we could not support it because the term "principal reasons" suggests that the competence would always have to be defined only to achieve a particular policy objective. Given that the competence would be granted on an enduring basis, it will usually need to be defined to enable policies to be adapted or altered within the scope of the legislative competence granted. Otherwise, the Assembly might have to return to Parliament to seek further legislative competence every time it wanted to amend its own legislation, which is obviously not the intention.
	However, I can confirm the basic premise that these are "powers for a purpose" and that they will be granted only on a case-by-case basis where it is agreed that it is right for the Assembly to be able to legislate on that matter. I apologise for speaking at length but this is a very important issue. I hope that with the benefit of this explanation my noble friend will feel able to withdraw his amendment.

Lord Thomas of Gresford: My Lords, does the Minister agree—to take as simple a situation as possible—that once a matter, however tightly defined, has been passed through an Order in Council and legislative competence has been given, it would be open for a Government to legislate along the reasons given to support that, but for another Government of a different stripe simply to reverse it? That is the simplest possible illustration that I can give.

Lord Evans of Temple Guiting: My Lords, I would agree with the noble Lord's example.

Lord Rowlands: My Lords, that was a very informative statement. It helped to clarify and define the big difference between Parts 3 and 4. In Part 3, we are not actually transferring primary powers to the Assembly. That is clear, because Parliament—Lords and Commons—will have the fundamental say on the Orders in Council. I am sure that the message will also come from Ministers that if orders brought before this House are ill defined and do not specify the principal purposes for which that competence has been sought, they will get a very rough ride. In the light of that, and because I accept that my amendment is defective, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Kingsland: moved Amendment No. 44:
	Page 52, line 4, leave out subsection (4).

Lord Kingsland: My Lords, Amendment No. 44 deals with Clause 94(4), which states:
	"An Order in Council under this section may make provision having retrospective effect".
	Orders in Council under Clause 94 are what I have called stage 1 orders. They delegate legislative authority to the Welsh Assembly by enhancing its fields of legislative power under Part 1 of Schedule 5. This matter was debated at some length on 6 June at columns 1169 to 1172; I do not wish to repeat all the arguments that were deployed at the time, either on our side or the Government's side.
	The worry that we have is clear. We are concerned that the retrospective power will be used to change decisions in litigation. If, for example, an Assembly measure is in issue in a trial, which has been authorised under one field or another of Part 1 of Schedule 5, and the judge concludes that the Assembly measure is ultra vires that field, we do not want an Order in Council made under Clause 94(4) to widen the scope, retrospectively, of the field in Part 1 of Schedule 5 to make what was decided by the judge as ultra vires, intra vires, thereby changing the decision of the court.
	We quite accept that if, as a result of litigation, an Assembly measure is decided to be ultra vires, an order might then be made changing the law for the future. That would be entirely understood and completely acceptable; but we would find it wholly unacceptable if the results of litigation could be changed by this subsection. I think that that summarises three columns of exchanges in Committee. I beg to move.

Lord Evans of Temple Guiting: My Lords, I hope that I will be able to reassure the noble Lord, Lord Kingsland. First, the Government do not envisage the power to make retrospective provision to be exercised except in very rare cases. Such an Order in Council will require the approval of the Assembly and both Houses of Parliament. Such a provision cannot therefore be made at the whim of the Executive.
	Let me give a hypothetical example of when this provision might be needed. Suppose the Assembly enacts a measure that introduced an incentive scheme for those helping 14 to 19 year-olds to gain qualifications, and the Welsh Ministers go ahead and implement the measure. After a year someone questions whether voluntary organisations are entitled to benefit from the scheme, because the matter under which the measure was made does not specifically refer to voluntary organisations but does refer to educational establishments. This is despite the fact that when the matter was added, it was made clear in the Assembly and in Parliament that what the Welsh Ministers had in mind was a scheme of the sort they have now implemented.
	In those circumstances it would be clear that everyone intended people in voluntary organisations to be able to receive the incentives, and, what is more, they would already have received some. There is already provision in Clauses 150 and 152 to enable the effects of any ultra vires legislation to be remedied so that third parties who have acted in good faith, believing the legislation to be valid, are not disadvantaged. In a case like that, where there is doubt about whether the measure should have been able to extend to voluntary organisations, the simplest course will be to correct the wording of the matter to remove the doubt. All Clause 94(4) does is make it clear that this can be done. In those circumstances it is inconceivable that an Order in Council would be brought forward that sought to undermine the court's proceedings. The Secretary of State would have to consider any action carefully for its compatibility with the convention rights.
	As I indicated in Committee, one would hardly ever expect this provision to be needed because no one would expect any shortcomings in the drafting of proposed Orders in Council to be ironed out during pre-legislative scrutiny. However, it is still necessary to have provision so that if any deficiency comes to light subsequently, it is absolutely clear what can be done to put it right. I hope that, with this explanation, the noble Lord will feel able to withdraw the amendment.

Lord Kingsland: My Lords, I am partially satisfied by what the Minister said, but only partially. I am trying to think how this would work in our own law—where there is no express provision for retrospectivity. I am concerned about the implications such a change might have for third parties although the Minister has drawn my attention to other clauses in the Bill that he believes will satisfy that worry. I will go away and reflect on what he has said, and retain the option to bring this matter back on Third Reading. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Livsey of Talgarth: moved Amendment No. 45:
	Page 52, line 11, leave out paragraph (b).

Lord Livsey of Talgarth: My Lords, in speaking to Amendment No. 45 I shall also speak to Amendments Nos. 49 and 51. Amendment No. 45 omits laying the Order in Council before it is approved by a resolution by each House of Parliament.
	Amendment No. 49 reduces the time taken to lay the draft before Parliament from 60 to 30 days. The Secretary of State must give written reasons if that is not done. We believe that is a necessary process. The Assembly resolution would be received and submitted. The Clerk of the Assembly, not the Secretary of State, should then submit draft Orders in Council, once they have been approved, for approval by Her Majesty in Council.
	Amendment No. 51 would reduce the time from 60 days to 30 days in a situation where Parliament had been prorogued or adjourned. The amendments together provide that a draft Order in Council cannot be either submitted to Parliament or rejected by the Secretary of State; it can only be sent to the Queen for approval. The amendments were designed to liberate the Assembly from the grip of Westminster. They would give more power to the Assembly by removing some of the delaying powers and possible blocking by the Secretary of State or Parliament. We believe that that procedure would perhaps help to solve the problem mentioned by the noble Lord, Lord Kingsland, that the Secretary of State would have too much power. I beg to move.

Lord Evans of Temple Guiting: My Lords, as we have heard, Amendment No. 45 would remove the requirement for a draft Order in Council amending Schedule 5 to be approved by both Houses of Parliament. It would remove Parliament from the process of conferring legislative competence on the Assembly by the Clause 94 process altogether, allowing the Assembly to vote itself unlimited additional powers. Indeed, the Assembly's power would become so vast, as my noble friend Lord Sewel pointed out in Committee, that the amendment can hardly be regarded as a species of devolution. I cannot think of any precedent anywhere in the world where a sub-national legislature can simply vote itself whatever new powers it wishes. Under the amendment, any field of policy could be devolved without parliamentary consent, from foreign policy to taxation, pensions, defence and national security. Noble Lords on the Liberal Democrat Benches will not be surprised that I must reject the amendment on principle. It bears no relation whatever to the settlement for which the Welsh people voted in the 1997 referendum.
	Amendment Nos. 51 and 49 would remove the Bill's provisions for a 60-day period during which the Secretary of State may consider a draft Order in Council that has been approved by the Assembly before laying it before Parliament or writing to the First Minister explaining his reasons for declining to do so. Instead, the amendments would require the Secretary of State before the end of 30 days to send the draft order approved by the Assembly to the Clerk of the Assembly, who is then under a duty to submit it to Her Majesty for approval. Given that the Secretary of State will be required to set in train a process that would result in Her Majesty approving the Order in Council, it is not clear what the purpose of the 30-day period would be.
	The Secretary of State would not be able to consider the draft Order in Council and then reject it if he did not think it appropriate, because the amendment requires him to send it to the Clerk. We cannot agree that there is anything unreasonable in the 60-day period or the mechanism provided in the Bill for the approval of such Orders in Council. First, it is important that the Secretary of State has sufficient time to consider a request once it has been submitted by the Assembly, particularly if changes have been made to the request following pre-legislative scrutiny. Secondly, many contributions to our debates on the Bill from all sides of the House have stressed the importance of Parliament scrutinising the proposed Order in Council, since it is unamendable when formally laid before Parliament.
	It is the Government's intention that pre-legislative scrutiny of proposed Orders in Council will normally take place before a formal request for an order is made by the Assembly under Clause 94, therefore enabling recommendations to be taken into account. To ensure proper scrutiny of proposed orders, the Bill provides for a 60-day period after such a formal request for an order has been submitted, which would provide the Secretary of State with discretion to invite further scrutiny where appropriate. By limiting that period to 30 days, the Liberal Democrat amendment would make it extremely difficult for Parliament to undertake such scrutiny effectively.
	I hope that I have given a satisfactory explanation and that the noble Lord, Lord Livsey, will feel able to withdraw the amendment.

Lord Livsey of Talgarth: My Lords, I was not surprised by the Minister's response, particularly on Amendment No. 45. However, Amendment No. 51 would reduce the period from 60 to 30 days if Parliament had been prorogued. Parliament could be prorogued for a relatively long time and the legislative process could be delayed for an extended period. However, I have listened to what the Minister has said and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendment No. 46 not moved.]

Lord Kingsland: moved Amendment No. 47:
	Page 52, line 18, at end insert—
	"(6A) If, after receiving a copy of the resolution under subsection (6), the Secretary of State considers it appropriate to proceed with the making of an Order in Council, he shall lay before Parliament a document containing his proposals in the form of a draft of the Order.
	(6B) Where a document has been laid before Parliament under subsection (6A), no Draft Order shall be laid before Parliament before the expiry of the period of Parliamentary consideration, as defined in subsection (6C).
	(6C) In this section "the period of Parliamentary consideration", in relation to a document, means the period of six months beginning on the day on which it was laid before Parliament.
	(6D) In preparing a Draft Order to give effect to proposals in a document laid under subsection (6A), the Secretary of State must have regard—
	(a) to any representations made during the period for Parliamentary consideration with regard to the document, and
	(b) in particular, to any resolution or report of, or of any committee of, either House of Parliament with regard to the document.
	(6E) When he lays the Draft Order in Council before Parliament, the Secretary of State must also lay a statement giving details of—
	(a) any such representations, resolutions or reports, and
	(b) the changes (if any) that he has made to his proposals in the light of those representations, resolutions or reports."

Lord Kingsland: My Lords, we have debated the substance of Amendment No. 47 on a previous occasion. It is the Opposition's attempt to respond to the suggestion by Mr Ainger in another place that Parliament should develop a suitable pre-legislative procedure to deal with draft Order in Council proposals. Your Lordships will recall that the involvement of both the Welsh Affairs Committee and the Welsh Grand Committee was considered vital by a number of Members in another place.
	This amendment seeks to maximise the impact of the pre-legislative procedure, which takes place in Parliament's committees, on the decision makers. Here I am thinking particularly of the Secretary of State but also of the Welsh Assembly. Of course, it will not be true for all draft orders; some will be more controversial than others. But I believe that, before the formal procedure starts, Parliament will need some time to look at the various considerations. I have suggested a period of six months. I expect that many of your Lordships will consider that too long; I would certainly be willing to entertain a somewhat shorter period, although Parliament would still need several months to conduct an appropriate investigation.
	Under the Order in Council procedure, Parliament will not be able to amend the order in the way that it does draft Bills. I have tried to deal with that in new subsections (6D) and (6E) of my amendment. New subsection (6D) would require the Secretary of State to have regard,
	"(a) to any representations made during the period for Parliamentary consideration with regard to the document, and
	(b) in particular, to any resolution or report of, or of any committee of, either House of Parliament with regard to the document".
	Your Lordships will also note that subsection (6E) proposes that, when the Secretary of State lays the draft Order in Council before Parliament, he,
	"must also lay a statement giving details of—
	(a) any such representations, resolutions or reports, and
	(b) the changes (if any) that he has made to his proposals in the light of those representations, resolutions or reports".
	These Orders in Council devolve power to the Welsh Assembly from the sovereign Parliament of the United Kingdom. They must be taken seriously. They can be dealt with seriously only if the structures and procedures are in place at Westminster to give them the examination that we would normally expect to give a Bill, bearing in mind that, unlike a Bill, we cannot amend them. That is the philosophy behind this amendment. I hope that the Government will welcome it and, though they cannot legislate for what happens in Parliament, give enough sea-room in the Bill for Parliament to undertake its important task. I beg to move.

Lord Davies of Oldham: My Lords, the central aim of the noble Lord's amendments appears to be to impose a six-month period of parliamentary pre-legislative scrutiny.

Lord Kingsland: My Lords, I beg the Minister's pardon. It is not the central aim to impose a six-month period. The aim is to ensure proper investigation of the draft order. Among the means of doing it is the suggestion that there should be a six-month period; but I think I said in opening that I would certainly be prepared to consider a lesser period than six months, if that were thought appropriate.

Lord Davies of Oldham: My Lords, we are at one on the question of effective pre-legislative scrutiny, but where I am bound to differ from the amendment is that it makes it quite clear that there is an obligation on Parliament with regard to this situation, which I am bound to have difficulties in accepting. It would be for Parliament to make its decisions on what it required as time for proper pre-legislative scrutiny; it is not a matter for us to put in a Bill—and therefore an Act—given the fact that different circumstances and different orders might lead to different considerations as far as Parliament is concerned.
	We are at one with the noble Lord on his concern that there should be adequate pre-legislative scrutiny. But Parliament is well versed in pre-legislative scrutiny and we are developing experience and expertise apace in this as time goes on. I think, therefore, that the noble Lord will see the sense in leaving this for Parliament to make its judgments on, according to the orders, rather than for us to write it into this legislation in the rather rigorous format proposed. Any statutory period of pre-legislative scrutiny would reduce flexibility. He will recognise that some Orders in Council will raise such significant issues of competence that the pre-legislative scrutiny might take a considerable time. Other Orders in Council would be so straightforward that to seek to make a statement about the length of time that needed to be considered would be inappropriate.
	The other aspect that I am concerned about is that it surely makes sense for the pre-legislative scrutiny by both the Assembly and Parliament to take place rather earlier in the process than the noble Lord seems to envisage with his amendments; namely, before approval by the Assembly so that the views can be taken into account before the draft Order in Council is laid before the Assembly. We are concerned, as I am sure the noble Lord is, that when the Assembly is about the legislative process it should have the best possible insight into what is acceptable and advantageous to the people of Wales. We want this pre-legislative scrutiny, therefore, to be early in the process. That, I think, deals with Amendment No. 47.
	Amendment No. 48 removes the express duty on the Secretary of State to lay the draft approved by the Assembly before Parliament or to refuse to state his reasons. This amendment would remove that duty and leave the matter solely at the discretion of the Secretary of State. We do not favour that approach. We sought to introduce into the Bill appropriate safeguards in relation to the process of seeking legislative competence for the Assembly under this part of the Bill. Amendment No. 48 would effectively take out an important consideration in that regard.
	I hope that the noble Lord recognises that we share his concern about the legislative process. We differ in our perspectives of how it would work, but I assure him that we are as concerned as he is about the rigour of the process and want the exercise to be conducted in such good terms as to guarantee that the legislation is effective.

Lord Kingsland: My Lords, I am most grateful to the noble Lord for his reply. He has suggested an approach upon which we might find a degree of consensus. He will notice that our amendment lays obligations on the Secretary of State. In his dilation, the noble Lord talked about the importance of Parliament getting an early sight of the process of negotiation that had been taking place between the Secretary of State and the Welsh Assembly. It occurred to me, therefore, that since the Secretary of State is a Minister who is, after all, accountable to Parliament, he might bring to the Welsh Affairs Committee or the Welsh Grand Committee—or some other forum—his approach to the formulation of the draft order so that he can share it with parliamentarians. That will enable him to get wind of whether what is being proposed will, at the end of the day, be acceptable to Parliament.
	By suggesting to your Lordships' House that an early and close relationship between the Secretary of State and your Lordships' House and another place is desirable, the noble Lord has captured the spirit of my amendment, which I greatly welcome. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendments Nos. 48 to 52 not moved.]
	Clause 95 [Scrutiny of proposed Orders in Council]:
	[Amendment No. 53 not moved.]
	Clause 96 [Introduction of proposed Assembly measures]:

Lord Rowlands: moved Amendment No. 54:
	Page 53, line 16, at end insert—
	"( ) The Presiding Officer must, on the introduction of an amendment to a proposed Assembly Measure—
	(a) decide whether or not, in the view of the Presiding Officer, the amendment if carried would mean that the proposed Assembly Measure or any provision of it would be within the Assembly's legislative competence, and
	(b) state that decision."

Lord Rowlands: My Lords, Clause 95, part of Clause 96, Clause 98 and perhaps Clause 100 deal with the possibility that either a matter or a measure could be referred to the Supreme Court by the Attorney-General or the Counsel General if it appears that it is outside the scope of the Assembly's legislative competence. Those are sledgehammer powers. Intriguingly, Clause 96(3) says that at an early stage,
	"The Presiding Officer must, on or before the introduction of a proposed Assembly measure in the Assembly . . . decide whether . . . the provisions . . . would be within the Assembly's legislative competence, and . . . state the decision".
	I was intrigued by the role of the Presiding Officer—it is important and right that they should have that role—in this case. What would happen? Once that decision has been made, does the measure not proceed? What would happen if amendments to a measure were proposed that would, if they were agreed to, take the measure outside the Assembly's competence? Who would rule on such amendments? If the Presiding Officer is acting as the first gatekeeper, he should also in this instance decide whether a proposed amendment would or would not, if carried, take the measure outside the Assembly's competence. Perhaps I should have amended my amendment to include the chair of committees, because some of the amendments may arise in committee stage when the Presiding Officer is not presiding.
	I notice with interest that, in Scotland, the Presiding Officer decides on the admissibility of amendments. In this case, far better than involving supreme courts and the rest of it, this matter should be dealt with in the terms and procedures of the Assembly itself. Therefore I am attracted to Clause 96(3), subject to finding out what happens once the Presiding Officer has made and stated his decision, in that his power should also apply to amendments that would carry the measure beyond the Assembly's competence. I beg to move.

Lord Livsey of Talgarth: My Lords, Amendment No. 54 of the noble Lord, Lord Rowlands, is eminently sensible. The Presiding Officer is the gatekeeper in this situation. As the noble Lord has said, the Presiding Officer has such powers in Scotland. The amendment would place a duty on the Presiding Officer to state whether any amendments to an Assembly measure were within the Assembly's legislative competence. That is reasonable for the Presiding Officer to judge, and the Bill already provides for the Presiding Officer to state whether a measure is within the Assembly's legislative competence. But it would be useful to clarify what happens if the measure is amended during its progress in the Assembly, as the noble Lord, Lord Rowlands, has said. That is a right and proper role for the Presiding Officer and his legal team, who we are confident are competent to adjudicate on this issue.

Lord Norton of Louth: My Lords, I reinforce what the noble Lord, Lord Livsey, has said. The noble Lord, Lord Rowlands, has raised an important point, both interrogatively, on the consequence of a statement by the Presiding Officer, and on what happens about amendments. I also raise a query as to whether the same provision about an amendment should extend to subsection (2) for someone who brings an amendment forward, so that there is an onus on them to make a similar statement. I raise that possibility, which I think is the logical consequence of what the noble Lord says. He has raised an extremely important point.

Lord Evans of Temple Guiting: My Lords, I agree with the noble Lord, Lord Norton of Louth, that this is important. We absolutely understand the concerns raised by this amendment and agree that it requires careful consideration by the Assembly. I am sure that the Assembly Committee on Standing Orders will consider the matter seriously, and it is absolutely right that it should do so.
	Questions such as whether amendments that would fall outside the Assembly's legislative competence should be ruled inadmissible in the first place, or what degree of discretion the person selecting amendments should have, are important. Neither the Scotland Act 1998 nor the Northern Ireland Act 1998 contains a similar provision, but the standing orders of the Scottish Parliament and the Northern Ireland Assembly consider the admissibility of amendments in some detail, although they do not require what this amendment would impose as a statutory requirement on the Welsh Assembly.
	Even before that stage, however, the Bill also contains safeguards in Clause 98, so that if any provisions of an Assembly measure appear to be outside the Assembly's legislative competence, either the Counsel General or the Attorney-General can refer the proposed measure to the Supreme Court, or to the Judicial Committee of the Privy Council until the Supreme Court has been established. The proposed measure cannot become law when either the Counsel General or the Attorney-General can refer such questions to the Supreme Court, or at any time when the Supreme Court is considering such a reference.
	The Government believe that this Bill contains as much as needs to be set out in primary legislation by way of safeguards to ensure that Assembly measures remain within the legislative competence of the Assembly. If the unthinkable should occur, even if the error was made in good faith, it can be remedied. I hope that my explanation will enable my noble friend to withdraw his amendment.

Lord Rowlands: My Lords, I am grateful to my noble friend. I am also grateful to noble Lords for their support. This matter is best dealt with in Assembly procedures, rather than by using the sledgehammer of the Counsel General or the Attorney-General going to the Supreme Court on these issues. If we can send a message that this should be covered by the standing orders and procedures of the Assembly, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendment No. 55 not moved.]
	Clause 97 [Proceedings on proposed Assembly Measures]:
	[Amendment No. 56 not moved.]
	Clause 98 [Scrutiny of proposed Assembly Measures by Supreme Court]:
	[Amendment No. 57 not moved.]
	Clause 99 [ECJ references]:
	[Amendment No. 58 not moved.]
	Clause 100 [Power to intervene in certain cases]:

Lord Elystan-Morgan: moved Amendment No. 59:
	Page 55, line 25, leave out paragraph (b).

Lord Elystan-Morgan: My Lords, this is a probing amendment that seeks reassurance from the Minister in relation to this provision in Clause 100. Indeed, there is a similar provision in Clause 113 in Part 4. Both clauses create an obligation, indeed, a right, for the Secretary of State for Wales to intervene in certain circumstances. The power of intervention in both cases, and thereby the scope of the Secretary of State's jurisdiction, is enormous. In the first instance, I recoiled when I thought of the enormous influence for evil that potentially rests in these situations. Once the Assembly has been given substantial responsibilities under Parts 3 and 4 and entrusted with responsibilities that are consistent with a considerable development in the constitutional field in relation to Wales, it is utterly incongruous that the Secretary of State, whoever he or she may be, should be invested with powers that belong more to a 19th-century colonial governor than to the present day.
	The powers with which I am concerned in these amendments are in relation to the possibility of a serious adverse impact on water resources in England, water supply in England or the quality of water in England. On the face of it, that situation could cover a case where a Welsh city sought to aggrandise or increase resources in England and, indeed, bring about the very opposite of the melancholy effect in areas in Wales over the past 150 years. However, I doubt very much whether it was ever intended that the power should operate in that way.
	The restriction is in respect of the Welsh Assembly. It does not grant any authority in England any greater jurisdiction or powers than it would otherwise have. It restricts what might be called the "Welsh reaction"—the potential anticipated reaction in Wales. In other words, if there were an attempt to aggrandise further, it would make it much more difficult for the Welsh Assembly to exercise a reasonable measure of self-defence in relation to a Welsh resource, such as water.
	Water touches a very raw and inflamed nerve in Wales, particularly in rural areas. I well remember the sense of shock and shame—almost of obscenity—some 50 years ago when Liverpool insisted on drowning the Tryweryn valley. It seized the homes of the living and took the graves of the dead. Every Welsh Member of Parliament voted against that happening, and there was a feeling of total outrage. Any reasonable Welsh person reading the Bill—dozens have mentioned this provision to me—says, "What about the water point?" It is a very legitimate concern for Wales.
	I shall speak only briefly on the matter because it has been well rehearsed in the other place and indeed to some extent here. The powers that are already vested in paragraphs (a), (c) and (d) are enormous. The powers in relation to water are even wider. In the circumstances, can the Minister allay some of the fears that legitimately and understandably exist in Wales by explaining that these powers would be invoked only in circumstances that would be so extreme as to be almost unique, and that people in Wales can rest assured that there is very little likelihood of their ever being brought into effect? I appreciate that the provisions were in the 1998 Act. There has never been any difficulty since. That argument of course cuts both ways, but I believe that such an assurance should properly be given and would have a very significant psychological effect in Wales. I beg to move.

Lord Livsey of Talgarth: My Lords, Amendment No. 79 is in our name. We are greatly exercised by the issue, and I was very pleased to hear what the noble Lord, Lord Elystan-Morgan, said about his amendments. There is no doubt that water is a scarce commodity, and climate change means that there is likely to be 40 per cent less of it in Wales by 2050. It is one of the few valuable resources left in Wales, and it is part of our natural wealth. The Bill gives rise to many issues. Proposed subsection (3)(b), which Amendment No. 79 would insert into Clause 151, is designed merely to achieve equality of wording with that of the subsection relating to any adverse impact on water in England. There is no mention of what any adverse impact on water would be in Wales, so the wording of proposed subsection (3)(b) is:
	"In considering whether or not to continue exercising that function, the Assembly shall have regard to . . . any adverse impact that would be had on Welsh water by the discontinuation of the relevant function".
	Clause 151 currently allows the Secretary of State to intervene when the exercise of a particular function by the Welsh Assembly has a serious adverse impact on the resources, supplies and quality of water in England. Our amendment would remove the subsections that allow the Secretary of State to intervene either to remove the function from the person who currently operates it or to exercise the function himself. Instead, our amendment proposes that the Secretary of State can make representations to the Assembly about the effect that that function is having on English water. The Assembly must take those representations into account when considering whether to continue exercising that function. The amendment would also require the Assembly to take into account any adverse impact that the discontinuation of the function would have on Welsh water, as I have said.
	Given the objectives written into the 1998 Wales Act on the importance of environmental sustainability, issues such as compensatory flows in rivers and ecological damage may arise. On equality, we also have to remember that, for example, the Severn Trent company—the second most profitable water company in England—has a 999-year lease on water coming from the Elan Valley at a price that has been set in such a way that the dice, let us say, in the legislation are loaded not necessarily in favour of Wales. I commend my Amendment No. 79.

Lord Crickhowell: My Lords, the noble Lord, Lord Elystan-Morgan, spoke in emotional terms on this point. Anyone who has been involved in Welsh politics will know that these are sensitive issues. Immediately after I ceased to be the Secretary of State for Wales, I set up and became chairman of the National Rivers Authority where the responsibilities covered England and Wales. Long before political boundaries were drawn, the geological nature and structure of Wales came into being. The simple fact is that the great rivers of Wales flow into England, and not the other way round. The equally simple fact is that a very large part of the water supply to England comes from Wales, not just the north-west, to which the noble Lord referred. The River Severn, with its linkage to the River Trent, provides water throughout the Midlands, right across to East Anglia. This is a vital concern.
	Although it is unlikely, and one hopes representations would ensure that it would not occur, one can envisage circumstances in which an intervention by the Secretary of State and the English Government would be necessary. Certainly, the noble Lord is entitled to seek assurances from Ministers that that would be used only in the most reasonable way and only when circumstances dictated that it was essential. I entirely understand why the safeguard was introduced in the first place. Having had the responsibility for ensuring the water supplies for England and Wales, I do not see how one could avoid having some kind of safeguard of this kind.

Lord Roberts of Llandudno: My Lords, since the drowning of Tryweryn, we have seen a change in many directions. The relationship between Wales and the big cities—Birmingham and Liverpool have Welsh water—has become much more sensitive and understanding. A few months ago, we had an apology from the city of Liverpool to the people of Wales for the way in which the drowning of Tryweryn and the reservoir was handled. I do not think that that would happen again.
	This is a time when there is a great water shortage. My noble friend Lord Livsey spoke about there being 40 per cent less water in the future. There will be a demand for more reservoirs and for extending reservoirs. Two weeks ago, a report on water management referred to that. I am sure that the people of Wales now need to have confidence that they will be directly involved in any discussions on the use of their water resources. Should any new valleys be required for use in a different way or any reservoirs need to be extended, the voice of the Assembly of the people of Wales, which we did not have 40 years ago, should be listened to. That is why we are happy to support the amendment.

Lord Evans of Temple Guiting: My Lords, the Liberal Democrat Amendment No. 79 would, as we have heard, remove the Secretary of State's power to intervene in the exercise of functions by Welsh Ministers or others where it appears to him or her that this might have a serious adverse impact on water resources supply or quality in England. That power would be replaced by a duty to make representations to the Assembly in such circumstances. I am not clear why the amendment proposes that such representations will be made to the Assembly, as the subject of this clause is executive functions, which are the preserve of Welsh Ministers, not the Assembly. The amendments proposed by the noble Lord, Lord Elystan-Morgan, would remove the Secretary of State's similar powers of intervention in relation to water so far as the proposed Assembly measures and Bills are concerned.
	I remind noble Lords that the existing Government of Wales Act makes special provision for issues relating to water because of their cross-border nature, which was a point made by the noble Lord, Lord Crickhowell. The intervention power in Clause 151 reframes this provision to take account of changes to the devolution settlement made by the Bill. The noble Lord, Lord Roberts, made the very important point that things have changed since devolution and we have moved on from the very difficult things that were described that happened in Wales some years ago.
	Similarly, the intervention powers in Clauses 100 and 106 reflect the fact that the Bill provides for new legislative powers for the Assembly. I shall repeat the example that I gave in Committee. Welsh Ministers have appellate and call-in functions on the authorisation of discharge of pollution to certain waters. If the use of the intervention power were under consideration, perhaps in relation to discharges from a significant industrial installation, the Secretary of State would have to make a judgment on whether discharges, by their effect on rivers flowing into England, might have a serious adverse impact on water quality there. If, having considered the circumstances, the Secretary of State had reasonable grounds to believe that there might be such an impact, he or she would have to decide whether to invoke the intervention powers.
	It is important to place this intervention power in a practical perspective. The existing powers of intervention in the 1998 Act have never been used, and I see no reason to think that English and Welsh Ministers would not be able to reach agreement on matters relating to water resources in the future. The intervention powers in the Bill are there purely to provide a safeguard. I want to raise two points that I hope will reassure noble Lords who are most worried about this matter. During the Commons Committee stage, Mr Elfyn Llywd MP raised concerns that the water intervention powers could be used to enable a Secretary of State to permit the flooding of Welsh valleys, contrary to the wishes of the Assembly. That point has been raised. My right honourable friend Nick Ainger responded in writing to clarify that he could not envisage such circumstances ever happening; so it is there on the record.
	Similarly, there was a concern, with the current drought facing London and the south-east of England, that there may be the possibility of a national grid for water, which would involve the extension of reservoirs in places such as Wales. My right honourable friend David Miliband, the Secretary of State for the Environment, has made it clear that such a proposal would be,
	"fantastically expensive and fantastically environmentally damaging",
	and simply,
	"not a good idea".
	I do not think, therefore, that the notion that reservoirs in Wales will be extended to supply the parched south-east is remotely realistic. Nevertheless, we have to recognise, as the noble Lord, Lord Crickhowell, did, the interdependence of England and Wales as regards water resources. Clearly, there is a practical need for a last resort power of intervention to avoid any serious adverse impact on the resources, supply or quality of water in England that may result from some decisions taken in Wales.

Lord Livsey of Talgarth: My Lords, can the Minister indicate why there is no equality in this legislation between England and Wales? The river basins, after all, as has already been said, cover both countries. If there is an adverse impact in England, there is likely to be an adverse impact in Wales, but there is no mention of that. Can he clarify the situation?

Lord Evans of Temple Guiting: My Lords, the point here is one made by the noble Lord, Lord Crickhowell: water flows from Wales to England. Obviously if there is pollution on the other side of the border, it will flow further into England, not back into Wales. The fears that have been expressed in this short debate are acknowledged and I have attempted to reassure those noble Lords who are concerned about this very important issue that what happens in the future—post devolution; an important point made by the noble Lord, Lord Roberts of Llandudno—will be the subject of discussion and consensus between the two authorities.

Lord Elystan-Morgan: My Lords, I am deeply grateful to all who have contributed to this not insignificant debate. I join the noble Lord, Lord Livsey, in making the point that there is a total lack of equality between England and Wales in this matter. Of course the rivers flow from west to east, but water is a resource that is taken from Wales, and it is taken without compensation. I was tempted to raise this matter, but regarded it as one going well beyond the scope of the debate, although no doubt the opportunity with regard to the question of compensation will arise again for those areas in Wales, very often extremely impoverished rural areas, that do not get any compensation for the most valuable and marketable asset of water.
	There are dangers which remain, but they are slight and have been greatly diminished by the establishment of a Welsh Assembly and will be further diminished by the powers of that Assembly, despite this provision. If there ever was an attempt to aggrandise a Welsh valley in the way that Liverpool did almost 50 years ago, it would be the biggest boost to Welsh nationalism that has ever occurred. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendment No. 60 not moved.]
	Clause 101: [Approval of proposed Assembly Measures]:
	[Amendments Nos. 60A to 61 not moved.]
	Clause 102 [Referendum about commencement of Assembly Act provisions]:

Lord Crickhowell: moved Amendment No. 62:
	Page 57, line 19, leave out "two-thirds" and insert "55 per cent"

Lord Crickhowell: My Lords, in the light of the earlier admonitions from the noble Lord, Lord Evans of Temple Guiting, and the hovering figure of the Government Chief Whip, I hope to reassure them by saying that much of what I had originally intended to say on this amendment I said long before the dinner hour on an earlier amendment. However, I have been encouraged since then by a number of remarks made by the noble Lord, Lord Thomas of Gresford, who I am sorry not to see in his place. He spoke of increasing optimism about the likely outcome of a referendum and mentioned again the weaknesses in the mechanism of Part 3 and the great problems it presents. Encouragingly, he spoke of moving as quickly as possible on to Part 4.
	I respect the position of Liberal Party Members and their hostility to referendums. It is a perfectly respectable position, but they have accepted that the provision is in the Bill. Indeed, they put down an amendment in Committee identical to my amendment to remove the powers of intervention by the Secretary of State. They have put down a further amendment today to restrict the time in which he can intervene. So we obviously have common ground and I hope that when they have heard what I have to say, they will be able to go a long way with me.
	I am particularly sorry that the noble Lord, Lord Elystan-Morgan, has had to leave because in an earlier debate he accused me of trying to cobble together a false situation. He said that nothing could be easier than to do this by a coalition cobbled together of malcontents about home rule who forced their vote on the Welsh people at a time when it was unlikely to succeed and where the whole motivation was to kill home rule. Since that time I have lain awake trying to see how it would be possible for the 11 Conservatives in a Welsh Assembly consisting of 60 Members to cobble together this mysterious defeat for all the other parties. Even if you assume a considerable number of Labour rebels, I find it impossible to believe that such a situation could be created.
	I have also tried to think in the most optimistic terms possible of the likely success of my party in the Assembly elections next year. Even if I was to assume that our membership went up from 11 to 20 and the Labour membership came down from 30 to 20, given the other parties, I am simply unable to conceive how the strange result dreamt up by the noble Lord, Lord Elystan-Morgan, could be arrived at.
	Despite that, however, I have taken the noble Lord's argument seriously and tabled a different amendment this time, referring not to 51 per cent but to 55 per cent. That would create a situation where you would need a majority of six or, if you take into account the Presiding Officer, seven. That is the equivalent of a majority in the British Parliament of approaching 70. I do not think anyone could seriously say that a majority of that order does not give an absolute authority for the Government of the day to act, or that it would be possible to manipulate the vote if you had to go to a majority of 55 per cent. I hope that those who want to see this matter hurried forward so that we can go on to Part 4 more speedily will encourage the amendment.
	My other amendments concern the role of the Secretary of State. I shall deal with them briefly. The Minister who replied to me on the previous occasion said, "Oh well, he was there to ensure that the views of the rest of the United Kingdom were taken into account". I am not quite sure how his consultation was going to do this—this one-man consultation of the whole of the rest of the United Kingdom—but the simple fact is that Parliament has a role. Parliament has to approve the referendum order and I have no doubt that if it thought the views of the rest of the United Kingdom were not being taken into account, it would not approve it.
	I said on the previous occasion that I thought the Minister was implying that the English should have a veto. I cannot really believe that his argument can be taken seriously. My position is today as it was before: I trust the Assembly—certainly with a majority requirement of 55 per cent—and I trust the people of Wales. It is on that basis that I move my amendment. I beg to move.

Lord Brougham and Vaux: My Lords, I have to advise the House that if Amendment No. 63, which is grouped with this amendment, is agreed to, I cannot call Amendment No. 64.

Lord Livsey of Talgarth: My Lords, I heard what the noble Lord, Lord Crickhowell, said. It is an interesting juxtaposition that three of the parties in the Assembly have been very steadfast in their support for devolution and the Conservative Party has recently become converted to it. We certainly feel that perhaps two-thirds might be more appropriate given the architecture of the Assembly at the present time. I can see why the proposal for 55 per cent is put forward but we would feel more comfortable with a two-thirds majority.

Lord Roberts of Conwy: My Lords, the more I consider the obstacle race that has to be run before a referendum is called in Part 4, and the more I listen to the background political noises, the more I am inclined to believe that the referendum will never be called by the present Government. I think that the Liberal Democrats are very optimistic in the next amendment in referring to the year 2010. I think that that may be the impression that the Government want to leave with the Welsh Labour MPs in the other place, who are feverishly antipathetic to the prospect of increasing powers for the Assembly and decreasing influence for themselves.
	It is the height and width of the hurdle in the Assembly that gives the game away as to the Government's real intention. It is not a simple two-thirds majority that is required; it is, as the Explanatory Notes tell us, two-thirds of the seats as opposed to the total number of Assembly Members voting. That means 40 votes. Looking at the 2003 election results, we can see that that total would require a combination of political parties—Labour and Plaid Cymru, or Labour and Conservatives. But not Labour and Lib Dem, as that would fall short by some four votes.
	What are the possible circumstances in which the two-thirds majority might be attained? I once heard the First Minister, Mr Rhodri Morgan, in the other place, describe this Bill as an exercise in advance of the Assembly and the Westminster Government being of a different political hue. Let us suppose that there was a Conservative Government in Westminster and a Labour Government in Cardiff Bay. Labour and other parties might combine in the Assembly to seek a referendum on Assembly Act provisions coming into force. But then there would have to be a majority in the other place and here to allow it after,
	"the Secretary of State has undertaken such consultation as the Secretary of State considers appropriate".
	My guess is that the high hurdle in those circumstances might shift to the other place and of course to this House. The official Opposition now favour a referendum, as we have said time and again during the passage of this Bill, because the Government have it installed in Part 4. No doubt we shall be reminded of it should those circumstances that I have described occur. We shall of course be equally entitled to remind other parties of their antipathy—indeed, abhorrence—of a referendum when Labour was in office.
	One point concerns me deeply. I have already mentioned it; it arises from the reluctance of the Government and the Liberal Democrats to welcome a referendum on Part 3 and, implicitly, on Part 4. If this Bill is enacted, we shall be imposing a new system of government on the people of Wales without their consent. It has the stench of stealth taxes about it, as my noble friend Lord Kingsland said earlier, and it deserves the thesaurus of condemnatory words that we heaped on it. The Labour Party will be punished when the people of Wales realise what is being done to them, and how.
	The thrust of my noble friend's amendment is to reduce the size of the hurdle to be overcome before a referendum. Of course, I fully support him in his effort to make the circumstances somewhat easier to lower the hurdle.

Lord Davies of Oldham: My Lords, the noble Lord, Lord Livsey, suggested that the Conservative Party was being converted to the cause of devolution. The problem is that it is, like many recent converts, becoming quite messianic about it. It now proposes to reduce the threshold—or at least the noble Lord, Lord Crickhowell, does, from his original proposal of two-thirds of all Assembly Members to 55 per cent. It must be recognised that a referendum must not take place prematurely for the simple reason that an unsuccessful referendum would undermine confidence in the Assembly and do profound damage to the whole devolution settlement. Of course, noble Lords in opposition may be entirely reckless about that consequence for the people of Wales, but let me assure them that if they aspire to any position of responsible government, they would take a different view about what has been established in Wales and the damage that could be done to an Assembly in which a referendum would be held and then a vote of the people against an extension of its powers.
	We maintain that to advance the cause of devolution we need broad cross-party support. Therefore, taking the opposition parties at face value, we greatly welcome their commitment to the development of devolution and we want to see that broad party consensus developed before a referendum can go ahead. Even when there was consensus about these issues in 1997, the referendum was won by only the narrowest of margins. A vote by not less than two-thirds of all Assembly Members and positive evidence from consultation would demonstrate that such a consultation existed and would help protect the devolution settlement for future generations.
	I am taking the Opposition at face value. They are committed to ensuring that devolution works. Therefore, I am sure that they agree with us that nothing should be done which would jeopardise the devolution settlement if things should go wrong with a referendum. It is therefore entirely right that we should see the gradual enhancement of powers for the Assembly, as we proposed, both in our manifesto and in the Bill. But the decision on full plenary powers would be, and is, a dramatic and significant decision for the people of Wales. It is only right. No Government would be acting responsibly at all if they pursued a course of action which might lead not only to the loss of that proposal, but to the existing devolution settlement and the operation of the Assembly being severely damaged.
	Amendment No. 63 would remove the statutory requirement placed on the Secretary of State to consult on the draft referendum order. Amendment No. 67 would remove the Secretary of State's discretion over whether to lay a draft referendum Order in Council before Parliament. It cannot be unreasonable for the Secretary of State to have some discretion in this matter and to be able to take the views expressed through consultation into account. The United Kingdom Government of the day should have a say on such a major constitutional decision, because that is what it would be.
	I am hearing some strange arguments from some strange quarters at the present time, which are indicating that neither the Secretary of State nor Parliament should have any say in such a significant development. The Secretary of State cannot avoid consulting the electoral commission on the referendum question. That is required under Section 104 of the Political Parties, Elections and Referendums Act 2000.
	We are all united in wishing to see devolution succeed. We should not therefore support an amendment which would put it in jeopardy. On that basis, I hope that the noble Lord will feel able to withdraw his amendment.

Lord Crickhowell: My Lords, the Minister said that a premature vote would be disastrous for the cause of devolution. He then went on to make clear that he certainly was not, in any circumstances, prepared to allow the Welsh Assembly to reach a judgment of when that moment should come. Surely, if anyone is in a position to make a judgment about the likely outcome, it should be the elected Members of the Welsh Assembly rather than the divided and self-interested forces of the Welsh Parliamentary Labour Party. Of course, as my noble friend Lord Roberts of Conwy said, that is the real reason why we are not being allowed to proceed to Part 4. That is also why it was quite clearly indicated in the election address of the Secretary of State for Wales to the electors of Blaenau Gwent today, about which comment has already been made, that he is only concerned with the immediate and that he has no intention of making any reference or progress towards Part 4.
	We now have the remarkable situation where the Labour Party and the Liberal Democrat Party, which say that they are in favour of the move to Part 4, are not prepared to see it at any time in the foreseeable future. As they are both against my amendment, there is no point in forcing it. However, I draw the attention of the people of Wales to the fact that the Conservative Party would give them Part 4, allow the Assembly to go forward to a referendum and back the judgment of the people of Wales. They can have Part 4 if that is what they want; it is the Government and the Liberal Democrat Party who are standing in their way.

Lord Geddes: My Lords, I assume that the noble Lord wishes to withdraw his amendment.

Lord Crickhowell: My Lords, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendment No. 63 not moved.]

Lord Livsey of Talgarth: moved Amendment No. 64:
	Page 57, line 23, at end insert—
	"( ) The Secretary of State shall lay a draft Order under subsection (6) not later than 30th June 2010."

Lord Livsey of Talgarth: My Lords, the Bill contains no clear timetable for the move to the legislative powers set out in Part 4. Such a timetable was a major recommendation of the Richard report. The amendment requires the Secretary of State to lay a draft order for a referendum by 30 June 2010. That should allow for the referendum to be held in time for the Assembly expected to be elected in 2011 to assume the powers contained in Part 4.
	No clear timescale is indicated in the Bill. We feel strongly that there should be a progression and some indication of when the referendum would take place. It is a logical procedure; there will be an election to the Assembly next year, so it will have run for three years by 2010. Tomorrow's Wales is very keen to see this amendment accepted. I remind the House that Tomorrow's Wales contains representation from all parties and none; it is chaired by the Archbishop of Wales. I beg to move.

Lord Thomas of Gresford: My Lords, this is the answer to the criticisms of our position that have been made from time to time by the noble Lord, Lord Crickhowell. We think this is a reasonable timetable and that the next step should be taken within a limited period. Although we have heavily criticised Part 3, we should allow it to work for two, three or four years, at the end of which we should see a referendum in place. I am confident in the Assembly; my confidence is growing, as the noble Lord, Lord Crickhowell, has said, regarding the success of a referendum. The amendment gives a proper framework in which the referendum can be held.

Lord Davies of Oldham: My Lords, I was grateful for the support of the noble Lord, Lord Livsey, on the previous amendment. Although he supported a two-thirds majority to prevent a premature referendum, his amendment includes an arbitrary timescale. The Government do not oscillate between these two positions but are consistent. Our view is that there will need to be judgment on when the referendum should be taken so that damage is not done to the Assembly and the existing devolution settlement by a result against such enhancement of powers.
	Of course noble Lords can disagree with this vision. The noble Lord, Lord Crickhowell, has been his usual eloquent self in identifying what he disagrees with. But the Liberal Democrat Members cannot have it both ways. If they agree it is intelligent that there should be judgment about this under a majority of support by elected Members of Parliament to take decisions on when the referendum should be held, there cannot be a case for an arbitrary time limit. That is why the noble Lord should withdraw the amendment.

Lord Livsey of Talgarth: My Lords, the Minister appears not to have sufficient confidence in the Assembly's ability to work its way through such a timetable. However, I do. The people of Wales would see it as a logical progression, not as something that has just been plucked out of the air. This is, as my noble friend Lord Thomas of Gresford has said, something we can have confidence in. We will have seen three years of the enactment and working of Part 3 of this Bill. I regret that the Minister said the timetable was arbitrary. We believe that it is logical and that the people of Wales would have confidence in it. The Members of the Assembly would have the confidence to ensure that this procedure went ahead. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Livsey of Talgarth: moved Amendment No. 65:
	Leave out Clause 102.

Lord Livsey of Talgarth: My Lords, I can be extremely brief on these amendments. They relate to clauses that refer to a referendum. This is the case with Clauses 103, 104 and 105. Those three clauses are the subject of Amendments Nos. 64, 68, 69 and 70, starting with Clause 102 and finishing with Clause 105. It is a matter of principle that we oppose them and want to leave them out of the Bill. I beg to move.

Lord Davies of Oldham: Once again, my Lords, I respectfully ask the noble Lord opposite to present some consistency. It appears that the intention behind these amendments is that by removing the clauses the Assembly would move straight to Part 4 of the Bill without the need for a referendum. The enthusiasm for devolution now on the part of the Liberal Democrats is such that no referendum is necessary at all. I am not sure when that is triggered. After all, the mechanism for commencement of these provisions is contained in Clause 104 and the amendment takes that out, so we have lost any capacity to form a timescale.
	Presumably the amendments are based on the intention that they would come into force immediately after the Assembly election in May 2007. A moment ago we had an amendment that indicated it should not be as early as that, and just before that I had support from the Liberal Democrat Benches for the Government's contention that the attempt of the noble Lord, Lord Crickhowell, to reduce the figures for a referendum might lead to a premature referendum and difficulty.
	Again, the Government are entirely consistent in their position. I am afraid these amendments attack that consistency. Our view is that Part 4 can only come into play after a referendum. A referendum will have to be carefully considered. It will need the support of a two-thirds majority of the Assembly and the support of Parliament, because it is right that a constitutional decision of this kind should be the subject of a view by Parliament as a whole.
	All that is predicated on the assumption that to get the concept of the referendum wrong would be to damage a devolution settlement. It would not destroy the devolution settlement, because, at least, in that sense, one could say that one was going back to square one and a situation where there was no National Assembly, but we are talking about a devolution settlement in which the Assembly would exist with powers under the existing legislation but having had a referendum against it showing no confidence in an enhancement of its powers, which is bound to do it damage.
	That is why the Government's position is carefully calibrated against the presumption that politicians—elected Members of the Assembly and of Parliament—must reach the difficult decision to enhance for the people of Wales the powers of their Assembly. The amendment would drive a coach and horses through that concept.

Lord Livsey of Talgarth: My Lords, I understand why the Minister is playing games with the amendments, but as we said we are coming from the principle that the only justification that we can see for a referendum is with regard to taxation and tax-bearing powers, and those are principles to which we adhere. The Minister can run rings around the concept. We wanted to make a statement of principle, we have made it, and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 103 [Proposal for referendum by Assembly]:
	[Amendments Nos. 66 to 68 not moved.]
	Clause 104 [Commencement of Assembly Act provisions]:
	[Amendment No. 69 not moved.]
	Clause 105 [Effect on Measures of commencement of Assembly Act provisions]:
	[Amendment No. 70 not moved.]
	Clause 106 [Acts of the Assembly]:
	[Amendment No. 71 not moved.]
	Clause 113 [Power to intervene in certain cases]:
	[Amendment No. 72 not moved.]
	Clause 114 [Royal Assent]:
	[Amendment No. 72A not moved.]

Lord Livsey of Talgarth: moved Amendment No. 73:
	After Clause 117, insert the following new clause—
	"ALLOCATION OF FUNDS
	(1) The Secretary of State shall appoint a panel of not less than four and not more than six experts to recommend the sums of money to be allocated to the Welsh Consolidated Fund.
	(2) The Secretary of State shall publish in full the terms of any recommendations made under subsection (1).
	(3) The panel shall have regard to—
	(a) the principle of fairness,
	(b) the principle of transparency, and
	(c) the particular needs of Wales."

Lord Livsey of Talgarth: My Lords, the hour is late. It is particularly unfortunate that we were not able to debate this amendment far earlier in the evening as was our intention. I am sure that that would be the feeling of other noble Lords here tonight. I would like to point out that after the amendment tabled on the allocation of funds in Committee, which was similar to this, I had a discussion with the noble Lord, Lord Barnett, on three separate occasions. In fact, I persuaded him that it was a good idea to participate in the debate. At the time, we felt that the amendment should come up at a more socially convenient hour. However, the noble Lord informed me yesterday that he has a hospital appointment. He sends his apologies, but he also says in a forthright way that he supports the amendment and he wants the House to know that.
	There is a deal of unfairness in aspects of the Barnett formula, which he himself acknowledges. There are reasons why we have tabled the amendment. As noble Lords will see, it states that,
	"The Secretary of State shall appoint a panel of not less than four and not more than six experts to recommend the sums of money to be allocated to the Welsh Consolidated Fund".
	That is a formula for Barnett-plus. Subsection (3) states that the panel should have regard to fairness, transparency and the particular needs of Wales. Noble Lords will want to know why we have tabled the amendment. The reasons are transparent. There has been a lower percentage increase in public expenditure in Wales than in England. Having decided the level overall, we find that it is being sadly eroded year on year. In addition, the Welsh Assembly Government had to find match funding for European Union Objective 1 from their own block grant. That also had an impact. For example, that is not the case with Cornwall, which has Objective 1 status but gets its money via another route in England.
	Between 1999 and 2005, in particular, there has been a Barnett squeeze on Wales. Spending on services such as health and education grew more strongly in England than in Wales, Scotland and Northern Ireland. That was due to the Treasury's Barnett funding formula, which determines changes in the annual block grant allocated to the devolved Administrations. Wales has lost apportionment to the tune of £1 billion between 1999 and 2005.
	The amendment would address certain issues. If it were accepted, account would be taken of the variation between allocations for health in England and those for Wales. There has been frequent use of the Barnett bypass in the past five years whereby moneys over and above the Barnett increase were added to the block grants for Wales, Scotland and Northern Ireland, for example when the devolved Administrations were compensated for an above-inflation UK-wide pay increase awarded to the nurses. That sort of thing happens very frequently. It distorts the Barnett formula and results in greater increases in England than in Wales. That occurs year on year, and the problem is compounded. The formula has been applied with full rigour in every comprehensive spending review. The only exception that we have established is where Wales received its EU Objective 1 funding. There was a huge tussle over that and, as we know, a First Minister ran against the rocks on that issue a little while ago.
	Many issues are involved in the allocation of funds. I have no wish to detain the House for much longer, but I should like the Minister to acknowledge that all is not well with the allocation of funds to Wales. The amendment would put that situation right. I beg to move.

Lord Evans of Temple Guiting: My Lords, I am afraid that I am unable to acknowledge the point that the noble Lord, Lord Livsey makes. I have spoken to my noble friend Lord Barnett about the Barnett formula. I believe that he is embarrassed that his name is attached to something that comes up about twice a week in your Lordships' House. I have not heard him say that he supports the amendment. Perhaps we should suggest to him that, to get his embarrassment under control, it should be called the "Livsey formula" rather than the Barnett formula.
	As we debated in Committee, the issue of funding for Wales raised by Amendment No. 73 is inseparable from the issue of public expenditure in the UK as a whole. The Bill obviously relates only to Wales. As we know, the Barnett formula is operated by the Treasury and determines the funding allocations for Northern Ireland and Scotland as well as Wales. Our view is that it has served the United Kingdom very effectively. The Government will continue to monitor the operation of the current formula to make sure that it is being applied properly and rigorously.
	The mechanism is clear and has advantages for devolved government. It is simple and understandable. The Government have taken a careful look at the matter and have concluded that no advantage would be gained by reopening the question of the Barnett formula. I draw your Lordships' attention to the fact that this amendment was debated, voted on and resoundingly rejected by 281 votes to 44 on Report in the Commons.
	Obviously, the last thing that we want to get into tonight is a detailed debate on the Barnett formula, but the Government's view is quite contrary to that expressed by the noble Lord, Lord Livsey. The spending review 2004 delivered an excellent settlement for Wales: an extra £2.5 billion to spend each year by 2007–08. The formula provided average growth of over 4 per cent each year over the spending period. The spending on Wales is higher than the UK average. The latest Treasury figures show that government spending per person in Wales remains well above UK levels and ahead of England. Spending on health—the point that the noble Lord, Lord Livsey, specifically raised—is three percentage points ahead of the UK and five percentage points above England. It may be that, with all due respect, the noble Lord is looking a gift horse in the mouth. I suggest that he withdraws his amendment.

Lord Livsey of Talgarth: My Lords, in all the debates that we have had this evening that was really the most predictable answer I have received. I expected that answer. It is not surprising, given the position of Scotland and the position of the Chancellor in the Government.
	The noble Lord, Lord Barnett, did say that to me last night, almost in earshot of others. I know that he does not like his name being bandied about with the Barnett formula, and I respect that, but I wanted to draw attention to the inequalities of the Barnett formula as it affects Wales. I am sure that the Minister will appreciate that because of the low GDP of Wales, which is still around 80 or 81 per cent of the average—we have a 20 per cent deficit in GDP—we have less money circulating in Wales. The compensation provided for in the Barnett formula was in the region of 15 per cent additional. I notice the Minister was quoting figures of 3 and 5 per cent, as far as some elements of the Barnett formula were concerned. The point is that this has been continually eroded year on year. I wish to bring that to the attention of the House this evening. In the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 124 [Annual Budget motions]:
	[Amendment No. 74 not moved.]
	Clause 135 [Examinations by Comptroller and Auditor General]:

Baroness Noakes: moved Amendment No. 75:
	Leave out Clause 135.

Baroness Noakes: My Lords, it is a pleasure to be returning to the House this evening to debate matters financial at such a pleasant hour. Amendment No. 75, which the Whips will be pleased to hear is probing, would delete Clause 135, which deals with examinations by the Comptroller and Auditor General—that is the UK's Comptroller and Auditor General and not the Auditor General for Wales. The C&AG can carry out examinations into the Welsh Consolidated Fund payments and can report to the House of Commons.
	In Committee, my noble friend Lord Crickhowell raised the question of the role of the UK Parliament in Welsh financial affairs generally. He did not get an answer from the Minister, and so I have tabled Amendment No. 75 to tease out how the financial relationship will work.
	In Committee, the Government ran a nice line in pro-Welsh democracy rhetoric. For example, when I moved an amendment to probe whether UK Ministers could impose conditions on payments made to Welsh Ministers, the noble Lord, Lord Evans of Temple Guiting, said:
	"The ability to impose such conditions . . . would subordinate Welsh Ministers to their colleagues in Whitehall . . . The Assembly is a democratically elected body accountable to the people of Wales; it is not an agency of central government".—[Official Report, 6/06/06; col. 1227.]
	Minutes later, the Minister said that there were mechanisms that ensured that money was actually spent on the purposes specified by UK Ministers. That would be via the Auditor General, who would audit against ministerial agreements. The Minister set that out in more detail in his helpful letter to me, which I received on 19 June. Further, when I probed on the ability of the Treasury to grab receipts by virtue of Clause 119, the answer again was that the UK Government had to have that power. Despite the rhetoric, the UK will retain some significant influence over receipts and payments under the Bill.
	That brings us to the audit arrangements. The Bill re-enacts the public audit arrangements for Wales in the shape of the Auditor General for Wales. He will pursue propriety and value for money issues in respect of the Welsh Consolidated Fund. Why, then, do we need Clause 135 and the powers of the Comptroller and Auditor General to do the same thing as the Auditor General for Wales? What happens if the Comptroller and Auditor General issues an adverse report? In Committee, my noble friend Lord Crickhowell raised the recent case of a critical—indeed, a very damning—report on the financial management of the Home Office. What would happen if a similar report was issued in relation to Welsh finances by the UK's Comptroller and Auditor General? Would that report go to the PAC? Whom would the PAC call? What happens in the UK Parliament about such reports?
	Clause 135 calls into question the robustness of the accountability arrangements in Wales. It imposes a separate accountability from Wales to the UK Parliament. I hope that the Minister will explain why the clause is necessary. I beg to move.

Lord Evans of Temple Guiting: My Lords, I say on behalf of these Benches what a great pleasure it is to receive the noble Baroness, Lady Noakes, back into the debate. I will try to give her the reassurances that she seeks.
	As we have heard, Amendment No. 75 would remove Clause 135. In doing so, it would deprive the House of Commons of the right to scrutinise, via reports of the UK Comptroller and Auditor General, how money that it has voted to the Secretary of State for Wales for payment into the Welsh Consolidated Fund has been spent.
	Clause 135(1) gives the Comptroller and Auditor General the right to examine payments into and out of the Welsh Consolidated Fund. Payments into the Welsh Consolidated Fund will largely comprise moneys voted by Parliament, so Parliament is entitled to see how the money that it has voted has ultimately been spent. It is only right that Parliament's appointed statutory auditor should have the right to examine the accounts of these payments and to report the results of his examination to the House of Commons. However, there is no question of the Comptroller and Auditor General overriding or short-circuiting the line of accountability to the Assembly. The Auditor General for Wales will have primary responsibility for scrutinising the payments into and out of the Welsh Consolidated Fund. He will examine and certify the accounts that Welsh Ministers have to prepare and lay his report on them before the Assembly. The Assembly's Audit Committee can then consider and report on those certified accounts.
	While it is entirely a matter for the UK Comptroller and Auditor General to decide when to exercise his examination rights under Clause 135, it is anticipated that they would be used only in the event of a serious problem which the UK Comptroller felt could not adequately be dealt with in Wales or in collaboration with the Auditor General for Wales.
	The comptroller currently has the right to examine the Assembly's finances under Section 101 of the Government of Wales Act 1998. That power has never yet been exercised. The Wales Audit Office has confirmed to the Government that it is content with the arrangements.
	The noble Baroness also asked what would happen if there was an adverse report. If the accounts do not comply with the directions issued by the Treasury on format and content, the Auditor General is under no legal duty to examine and certify them. That duty is only triggered once he receives accounts prepared in compliance with any Treasury directions under Clause 131(2). If the accounts omit the requisite content or are not in a compliant format, the Auditor General can simply send them back to the Welsh Ministers and ask for them to be reprepared.
	Provided the accounts comply with the Treasury directions, the Auditor General must examine, certify and report on them, but, if he is unhappy with or concerned about any item in the accounts, it is open to him to issue a qualified report that flags up his concerns to the Assembly and its Audit Committee, who will then be able to hold the accounting officer to account for those items.

Lord Crickhowell: My Lords, having originally raised the issue, am I right in thinking that this provision was put in the 1998 Act because the Assembly had corporate responsibility and the Audit Committee might therefore not be in a wholly independent position? I would be interested know at least whether the Government, with the new structure of the Assembly, considered doing away with it. One would have thought that the need for it was now much less obvious than under the 1998 Act.

Lord Evans of Temple Guiting: My Lords, the noble Lord is absolutely right: that was why it was there. There may be less need for it, but there we are.

Baroness Noakes: My Lords, I thank my noble friend for his contribution, which was again to the point.
	This is rather curious. We have perfectly good arrangements where the Auditor General for Wales has all the powers that he seems to need to carry out investigations and all the proper avenues for reporting things that go wrong. Nevertheless, the Comptroller and Auditor General is still there, able to investigate broadly what he wants, presumably able to issue reports as he chooses and then trigger the UK parliamentary procedures that flow from that.
	Given the lateness of the hour, we do not want to pursue that. I have already made it clear that this is a probing amendment for this evening, but we will want to think carefully about the unsatisfactory nature of what the Minister has told us and possibly return to it at a later stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 142 [Audit Committee reports]:

Baroness Noakes: moved Amendments Nos. 76 and 77:
	Page 78, line 24, leave out "Audit" and insert "Accounts"
	Page 78, line 30, leave out "Audit" and insert "Accounts"
	On Question, amendments agreed to.
	[Amendment No. 78 not moved.]
	Clause 151 [Intervention in case of functions relating to water etc.]:
	[Amendment No. 79 not moved.]
	[Amendment No. 80 not moved.]

Lord Roberts of Llandudno: moved Amendment No. 81:
	After Clause 155, insert the following new clause—
	"REGISTER OF LEGISLATION
	(1) It shall be the duty of the Welsh Assembly Government to establish and maintain a register of all Assembly legislation.
	(2) In this section "Assembly legislation" means all legislation made by the National Assembly for Wales, the Welsh Assembly Government, the Welsh Ministers, the Welsh Deputy Ministers and staff of the Welsh Assembly Government.
	(3) All Assembly legislation shall be made in a form prescribed in the standing orders of the Assembly.
	(4) The form and location of the register shall be prescribed by the Welsh Assembly Government.
	(5) All Assembly legislation made prior to the coming into force of this Act shall be published and entered in the register within twelve months of the date of the coming into force of this Act."

Lord Roberts of Llandudno: My Lords, I pay tribute to all involved in discussing what we on these Benches think is a vital amendment, which would ensure that all legislation made by the Assembly is published, transparent and accessible to everyone. I thank those who have been working so hard in informing us of their concerns: the CAB, the British Medical Association, the Law Society and other organisations such as law firms that deal with these matters. They are concerned that they are not able to easily access all the legislation deriving from the Assembly, more so now that the Assembly will have greater powers. They have been a great help with all the information that they have given us. I also thank the Bill team—who have really stretched themselves to the limit in trying to ensure that we understand exactly what is possible—and the Minister, who has been handling this.
	Without taking a long time this evening, I want to see our amendment carried. I think that the Minister is moving in that direction. We need a register that people in all walks of life who have any cause for concern can access. The current publication scheme of the Welsh Assembly Government undertakes to publish subordinate legislation, including draft subordinate legislation laid before the National Assembly for consideration in plenary session. The Welsh Assembly Government also publish a weekly bulletin. However, there is no commitment to register all legislation, and that is what the amendment seeks to rectify.
	We have gone a long way on this. We have the promise of online access to all legislation. However, in the past few days, things have moved in the direction of having hard copies of all legislation available to all who need to access it. This amendment has been redrafted in the light of the helpful comments of noble Lords. Responsibility relating to legislation rests with the National Assembly for Wales, and responsibility for ensuring that there is a register of legislation falls on the Welsh Assembly Government. The simple request is that everybody who is affected by legislation should have access to it.
	The amendment would not change or overturn legislation that was passed prior to the Act coming into force. It requires the compilation of an index of all legislation made by the Assembly since its creation and a register that can easily be accessed. In Committee, the Minister confused me with all the different sorts of legislation and all the talk of ways in which different types of legislation were made known to the public, and I might have confused other people. We need some codification and full publication. The Minister may say that that does not happen in the UK Parliament, but that does not matter because, if Wales can lead in this, the rest of the United Kingdom can follow. I beg to move.

Lord Roberts of Conwy: My Lords, there have been a number of late developments since we last discussed this important issue in Committee. The amendment tabled by the noble Baroness, Lady Finlay, which was so ably presented by the noble Lord, Lord Roberts of Llandudno, would insert a new clause in the Bill. A letter from the First Minister attempts to deal with our concerns. As the noble Lord said, those concerns were brought to our attention by the Law Society, the BMA, the British Dental Association and other organisations, to which we are grateful.
	In Committee, I expressed my concern about non-statutory legislation passed and not registered between 1999 and the end of 2005. It is estimated that there are about 6,000 items. The Minister said:
	"We have arrangements for UK legislation as a whole, and I hope that it will be recognised that any arrangements that need to be made in Wales are a matter for Welsh Ministers and not for this Bill".—[Official Report, 6/6/06; col. 1222.]
	The First Minister's letter, which was circulated to us by the noble Lord, Lord Evans of Temple Guiting, indicates that the Assembly and its Government accept the responsibility as theirs. We have a fairly detailed statement of the steps already taken and the further steps ahead.
	I am particularly concerned about the missing years 1999 to 2005. The First Minister says:
	"I have commissioned a feasibility study to consider the issue of indexing the non-statutory instrument subordinate legislation made between 1999 and 2005 . . . this will be an extensive exercise".
	He also states that key stakeholders will be thoroughly engaged. I presume that by "key stakeholders" he means such bodies as the Law Society and the BMA.
	I am reasonably satisfied with those assurances and with the knowledge that the First Minister accepts responsibility on behalf of the Assembly Government. This is clearly a matter for the Assembly to pursue as part of the task of holding the Government to account. If I find I am mistaken, which I do not think I shall be, I shall return to the issue at Third Reading.

Lord Norton of Louth: My Lords, I appreciate that it is late, but I rise to support the amendment moved by the noble Lord, Lord Roberts of Llandudno, because the principle underlying it is absolutely essential—so much so that there is a case for putting it into the Bill. It is essential that all the people in Wales have access to the text of the legislation that affects them. That is a fundamental principle. The amazing thing is that the current situation has been allowed to pertain. I listened to the debate in Committee, and I think that the amendment—particularly its proposed subsection (5), which attempts to get at that missing legislation and would give leeway for getting it on the record—has gone a long way towards addressing the points that were made. That is essential. The amendment raises such a fundamental point that there is a case for putting it into the Bill.

Lord Evans of Temple Guiting: My Lords, having spent my working life as a publisher, I have become very interested in the past few years in digitisation, recognising how important it is that material should be available to the public. I have spent a lot of time at the Library of Congress, which has led the way in digitising printed material, and I am totally behind the spirit of what is being proposed. I really do not think, having read the letter from the First Minister, that there is any disagreement here at all. Obviously there are technical difficulties, as you will find if you talk about digitisation programmes, but the intention is that what is delivered in electronic form is what should be delivered in electronic form. I should clear up one misunderstanding: there is a difference between having something online and having hard copies but, if something is online, you can make a hard copy at the press of a button. So that really is not the problem.
	As we heard, following the debate in Committee, I wrote to the First Minister to convey the concerns voiced by Peers and asked for his assessment of the issue and the details of any action that has been taken. The letter has been referred to and it is in the Library; I will not read all of it out, but it is very comprehensive. The First Minister says:
	"We already go further than the rest of the UK in publishing this information which is made available via the legislation section on our web-site".
	He also voices the concerns expressed during the debate on the subordinate legislation made between 1999 and 2005, which I think is the issue. As we have heard, he has commissioned a feasibility study to consider indexing the non-statutory instrument legislation.
	I really do not think that this is a matter on which we can disagree. The First Minister intends to deliver the spirit of what we have been talking about both in Committee and this evening. Obviously there are technical problems, but I hope that the House will welcome the First Minister's very positive response. I have every confidence that we, and the people of Wales, will get what we want—online access to legislation that can be downloaded as a hard copy at the press of a button so that those of the printed-word generation can read it in book form rather than on screen.

Lord Roberts of Llandudno: My Lords, I thank the Minister for that response. As he rightly said, we have moved considerably since Committee stage. We will be looking at how this works out. However, I am still concerned that, say, Mrs Jones, who would not know a computer if she saw one, will be able to access this legislation.

Lord Evans of Temple Guiting: My Lords, perhaps I may reassure the noble Lord that if Mrs Jones goes to her public library and takes advantage of the people's network, she will be able to access any of this legislation once it is in digital form.

Lord Roberts of Llandudno: My Lords, I am grateful to the Minister, and I shall tell all the Mrs Joneses what he wishes them to know. We thank the Minister. Knowing that progress has been made, we shall keep an alert eye on the publication of Assembly legislation and hope that we will never need to complain about it in any way. With that in mind, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Schedule 10 [Minor and consequential amendments]:

Lord Evans of Temple Guiting: moved Amendments Nos. 82 to 101:
	Page 144, line 11, leave out "Lord Chancellor and the Speaker of the House of Commons" and insert "Speaker of the House of Commons and the Speaker of the House of Lords"
	Page 154, line 32, at end insert—
	"51A In section 151(2) (power to make consequential amendments), for "22" substitute "58 of the Government of Wales Act 2006"."
	Page 158, line 16, leave out from "In" to end of line 17 and insert "section 12 (special reports: supplementary), omit subsection (9)."
	Page 158, leave out lines 23 to 29 and insert—
	"(3) Omit subsection (9).
	73 In section 21 (reports: alternative procedure), omit subsection (11).
	74 In section 23 (special reports: supplementary), omit subsection (6)."
	Page 158, line 33, leave out from "(2)" to end of line 34 and insert "—
	(a) for "Assembly First Secretary" substitute "relevant person", and
	(b) omit paragraph (b).
	(3A) After that subsection insert—
	"(2A) In subsection (2) "the relevant person" means—
	(a) if the complaint was made in respect of the Welsh Assembly Government, the First Minister for Wales, and
	(b) if the complaint was made in respect of the National Assembly for Wales Commission, a member of that Commission."
	(3B) Omit subsection (3)."
	Page 159, line 15, leave out "substitute "Welsh Ministers," and insert "has" substitute "Welsh Ministers have, or"
	Page 159, line 17, after "Government" insert "has,"
	Page 159, line 37, leave out "substitute "Welsh Ministers," and insert "has" substitute "Welsh Ministers have, or"
	Page 159, line 39, after "Government" insert "has,"
	Page 159, line 41, leave out "substitute "Welsh Ministers," and insert "has" substitute "Welsh Ministers have, or"
	Page 159, line 43, after "Government" insert "has,"
	Page 160, line 5, at end insert—
	"(aa) in the definition of "relevant tribunal", for "Assembly" substitute "Welsh Ministers","
	Page 160, line 15, leave out from "In" to end of line 16 and insert "subsection (2), for "Assembly" (in both places) substitute "Welsh Ministers".
	(4) After that subsection insert—
	"(2A) A statutory instrument containing an order under subsection (1) is subject to annulment in pursuance of a resolution of the Assembly."
	(5) In subsection (3), for "Assembly" substitute "Welsh Ministers".
	(6) In subsection (4)—
	(a) for "Assembly" substitute "Welsh Ministers", and
	(b) for "it thinks" substitute "they think".
	(7) After that subsection insert—
	"(4A) No order is to be made under subsection (3) unless a draft of the statutory instrument containing it has been laid before, and approved by a resolution of, the Assembly.""
	Page 160, line 26, at end insert—
	"(4) After subsection (5) insert—
	"(6) No regulations are to be made under this section unless a draft of the statutory instrument containing them has been laid before, and approved by a resolution of, the Assembly.""
	Page 160, leave out lines 27 and 28 and insert—
	"83 (1) Section 43 (consequential and transitional provision) is amended as follows.
	(2) In subsection (1)—
	(a) for "Assembly" substitute "Welsh Ministers", and
	(b) for "it thinks" substitute "they think".
	(3) After subsection (3) insert—
	"(4) No order is to be made under subsection (1) unless a draft of the statutory instrument containing it has been laid before, and approved by a resolution of, the Assembly.""
	Page 160, line 42, leave out ""if the"" and insert ""Ombudsman""
	Page 161, line 18, at end insert "former"
	Page 162, line 6, leave out "and the Welsh Ministers" and insert ", on the one hand, and the Welsh Ministers (or the First Minister for Wales or the Counsel General to the Welsh Assembly Government), on the other,"
	Page 162, line 9, after "Ministers" insert "(or the First Minister for Wales or the Counsel General to the Welsh Assembly Government)"
	Page 162, line 44, after "Ministers" insert ", the First Minister for Wales, the Counsel General to the Welsh Assembly Government"
	On Question, amendments agreed to.
	Clause 160 [Commencement]:

Lord Evans of Temple Guiting: moved Amendment No. 102:
	Page 90, line 22, leave out "and 6" and insert ", 6 and 12"
	On Question, amendment agreed to.
	[Amendments Nos. 103 and 104 not moved.]
	Clause 161 [Transitional etc. provision]:

Lord Evans of Temple Guiting: moved Amendment No. 105:
	Page 91, line 39, leave out subsection (4).

Lord Evans of Temple Guiting: My Lords, in speaking to Amendment No. 105, I shall speak also to Amendment No. 106. These amendments are the Government's response to the Delegated Powers and Regulatory Reform Committee recommendations. They provide for affirmative procedure in Parliament to apply to any orders under Clause 161 amending or repealing paragraphs 28 to 33 of Schedule 11, dealing with the transfer of functions to Welsh Ministers, and paragraphs 47 to 48 of that schedule, which concern the method for giving the Assembly enhanced legislative competence. I pay tribute to the work of the noble Lord, Lord Dahrendorf, and the members of the Delegated Powers Committee for their detailed and careful consideration of the Bill.
	As I set out in my letter notifying noble Lords of these amendments, the Government recognise that Schedule 11 gives effect to the constitutional change brought about by Parts 1 and 2. It is for that reason that we have sought to set out the transitional provisions in as much detail as possible in the schedule and therefore in the Bill. The Government accept that any amendment by order of the provisions in paragraphs 28 to 33 should be subject to the affirmative procedure. In addition, paragraphs 47 and 48 of Schedule 11 concern the power to amend Schedule 5, which sets out the matters on which the Assembly constituted by this Bill will have legislative competence. It would be consistent, since these paragraphs also relate to the conferring of powers, to make amendment of those paragraphs by order also subject to affirmative procedure. That is what the amendments will achieve. I beg to move.

Lord Roberts of Conwy: My Lords, I welcome particularly the Government's amendments to Clause 161 and Schedule 11 in response to the points raised by the Delegated Powers and Regulatory Reform Committee. The noble Lord will recall that I drew attention to the Committee's views on the importance of the transitional provisions in the schedule on our third day in Committee. In fact, I pleaded for the affirmative procedure to apply to orders modifying Schedule 11.
	The schedule was amended by the Government in Committee and is further amended now in order to clarify the need for the affirmative procedure for orders under paragraphs 28 to 33 and 47 and 48, which concern the power to amend Schedule 5 to the Bill. These amendments are very important and we shall look carefully at them again before Third Reading.
	This seems an appropriate moment to thank the Ministers, the noble Lords, Lord Davies of Oldham and Lord Evans of Temple Guiting, for the way in which they have dealt with our amendments over these two days. I also thank my noble friends who have shared the heat of the two days on the Front Bench and my noble friends who participated from the Back Benches. Indeed, I thank all noble Lords from all parts of the House who have contributed to Report stage.

Lord Livsey of Talgarth: My Lords, our party is totally in line with what the noble Lord, Lord Roberts of Conwy, has said, and we wish to be associated with everything that he said. We also express our appreciation to the Bill team.

Lord Evans of Temple Guiting: My Lords, we, too, are grateful for all the help, support and discussion that we have had from both Front Benches opposite and all Back Benches. I give a particular word of thanks to the Bill team, to whom the noble Lord, Lord Roberts, has paid tribute. I and my noble friend Lord Davies—not of Coity but of Oldham; that was a mistake made by the noble Lord, Lord Crickhowell, who has now left, to be corrected by Hansard—thank the Box and officials from the Wales Office and from the Assembly for the extremely professional way in which they have handled all the paperwork. Our thanks go to everyone.

On Question, amendment agreed to.

Lord Evans of Temple Guiting: moved Amendment No. 106:
	Page 91, line 45, at end insert—
	"(7) No order under subsection (2) which contains provisions in the form of amendments or repeals of any provision contained in any of paragraphs 28 to 33, 47 and 48 of Schedule 11 is to be made unless a draft of the statutory instrument containing it has been laid before, and approved by a resolution of, each House of Parliament.
	(8) A statutory instrument containing an order under subsection (2) is (unless a draft of the statutory instrument has been approved by a resolution of each House of Parliament) subject to annulment in pursuance of a resolution of either House of Parliament."
	On Question, amendment agreed to.
	Schedule 11 [Transitional provisions]:

Lord Evans of Temple Guiting: moved Amendments Nos. 107 to 116:
	Page 164, line 2, at end insert—

"Alteration of Assembly electoral regions

A1 (1) Until the coming into force of section 16(1) of the Political Parties, Elections and Referendums Act 2000 (c. 41) for the purpose of transferring the functions of the Boundary Commission for Wales to the Electoral Commission and conferring functions on the Boundary Committee for Wales, Schedule 1 has effect subject to the following modifications.
	(2) In paragraph 1, omit sub-paragraphs (2) and (3).
	(3) In paragraph 2, for sub-paragraph (1) substitute—
	"(1) This paragraph applies if the Boundary Commission for Wales ("the Commission") provisionally determine (in pursuance of section 3 of the Parliamentary Constituencies Act 1986 ("the 1986 Act")) to recommend the making of alterations affecting any parliamentary constituencies in Wales.",.
	and, in sub-paragraph (2), for "Committee" substitute "Commission".
	(4) In paragraph 3—
	(a) in sub-paragraph (1), for "Committee have provisionally determined to propose" substitute "Commission have provisionally determined to make",
	(b) in sub-paragraph (2)(b), for "effect of the recommendations is" substitute "Commission propose to recommend",
	(c) in sub-paragraphs (2)(c), (3), (4) and (5), for "Committee" substitute "Commission", and
	(d) in sub-paragraph (6), for "Committee's" substitute "Commission's",
	and in the heading before that paragraph, for "Committee's" substitute "Commission's".
	(5) In paragraph 4—
	(a) in sub-paragraphs (1) and (2), for "Committee" substitute "Commission",
	(b) in sub-paragraph (3), for "Committee may not proceed with the proposed" substitute "Commission may not make the", and
	(c) in sub-paragraphs (4), (5) and (6), for "Committee" substitute "Commission".
	(6) Omit paragraphs 5 to 7.
	(7) In paragraph 10(1), after "effect" insert ", with or without modifications,".
	(8) Omit paragraph 11(3).
	(9) In paragraph 12—
	(a) in the definitions of "the 1986 Act" and "the Commission", for "1(2)(a)" substitute "2(1)", and
	(b) omit the definition of "the Committee"."
	Page 167, line 15, at end insert—

"Crown status of Assembly Commission

17A Sub-paragraph (4) of paragraph 12 of Schedule 2 has effect until the end of the initial period with the omission of paragraph (b) (and the word "or" before it)."
	Page 170, line 21, leave out from beginning to "to" in line 29 and insert—
	"24 (1) Any provision of an Order in Council under section 22 of the Government of Wales Act 1998 (whether included by virtue of that section or, subject to sub-paragraph (3), any other enactment) which is in force immediately before the commencement of the repeal of that section by this Act continues to have effect after the commencement of that repeal as if it were a provision of an Order in Council under section 58.
	(2) Accordingly—
	(a) the reference in paragraph 7(2) of Schedule 3"
	Page 170, line 34, at end insert ", and
	(b) the reference in paragraph 18(5) of Schedule 8 to an Order in Council under section 58 transferring a function of preparing accounts to the Welsh Ministers includes a reference to an Order in Council under section 22 of the Government of Wales Act 1998 which makes provision having that effect by virtue of this Schedule.
	(3) Any provision which—
	(a) is included in an Order in Council under section 22 of the Government of Wales Act 1998 (c. 38) by virtue of section 155(2) of that Act (meaning of "Wales"), and
	(b) is in force at the time when this Act is passed,
	is to be treated after that time as if it were also contained in an order under subsection (3) of section 157 of this Act (having effect for the purposes of the definition of "Wales" in subsection (1) of that section)."
	Page 177, line 20, at end insert—
	
		
			  
			 "Section 68(1) of the Local Government Act 2000 (c. 22), if exercised to amend or repeal any enactment contained in an Act. Power to confer functions on Public Services Ombudsman for Wales. 
			 Section 68(3) of that Act, if exercised to amend or repeal any enactment contained in an Act. Power to make provision relating to Ombudsman's functions and expenses." 
		
	
	Page 177, line 21, leave out "the Local Government Act 2000 (c. 22)" and insert "that Act"
	Page 180, line 9, at end insert—
	enactment contained in an Act.
	Page 182, line 25, at end insert—
	Page 184, line 25, after "by" insert "or under"
	Page 191, line 4, at end insert—

"Welsh language strategy and scheme

45A (1) The National Action Plan for a Bilingual Wales (or Iaith Pawb) as it stands immediately before the coming into force of section (The Welsh language) has effect after that time (with appropriate modifications) as if it were a strategy adopted under subsection (1) of that section.
	(2) Any Welsh language scheme adopted by the Assembly constituted by the Government of Wales Act 1998 (c. 38) and current immediately before the coming into force of section (The Welsh language) has effect after that time (with appropriate modifications) as if adopted under subsection (2) of that section.
	(3) Sub-paragraphs (1) and (2) do not give rise to any obligation under section (The Welsh language)(6).
	(4) Section (The Welsh language)(8) does not apply in relation to the financial year ending with 31st March 2007."
	On Question, amendments agreed to.
	Schedule 12 [Repeals and revocations]:

Lord Evans of Temple Guiting: moved Amendment No. 117:
	Page 199, line 32, column 2, at beginning insert—
	On Question, amendment agreed to.

Childcare Bill

The Bill was returned from the Commons with the amendments agreed to.

Electoral Administration Bill

The Bill was returned from the Commons with the amendment disagreed to with a reason for such disagreement; the reason was ordered to be printed.

National Lottery Bill

The Bill was returned from the Commons with certain amendments disagreed to with reasons for such disagreement; with an amendment disagreed to but with an amendment proposed in lieu thereof; and with the remaining amendments agreed to; the Commons amendment and reasons were ordered to be printed.
	House adjourned at two minutes past eleven o'clock.